Does the Virginia Freedom of Information Act apply to JAUNT and other quasi-public transit corporations?

Plain-English summary

Delegate Sally Hudson asked whether Virginia FOIA applies to JAUNT, Inc., a public-service transit corporation headquartered in Charlottesville and jointly owned by six localities (Charlottesville, Albemarle, Buckingham, Fluvanna, Louisa, and Nelson). VFOIA covers "public bodies," which under § 2.2-3701 includes "other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds."

The AG's analysis is structured around what "principally" means. The phrase has no statutory definition. The FOIA Advisory Council's general rule: an entity receiving two-thirds or more (66.6%+) of its funds from public sources is supported "principally" by public funds. A lower percentage can still qualify case-by-case, depending on whether the public funding is the most important or primary source measured against the other (private) sources. Competitive grants and procurement-contract revenue are not counted as public funding for VFOIA purposes; non-competitive grants and appropriation-style largesse generally are.

The AG noted that a 2018 AG opinion said JAUNT received "over 84%" of its operating funds from state, local, and federal sources in 2017. That number, on its face, would put JAUNT well past the two-thirds benchmark. But the opinion does not decide JAUNT's status definitively because the percentage in any given year is a factual question. The opinion says: if JAUNT is supported principally by public funds at the time a request is made, it is a public body subject to VFOIA.

A 2021 lawsuit (Schilling v. JAUNT) had recently settled the question for that case. The general principle from this opinion outlives that particular settlement.

What this means for you

If you request records from JAUNT or a similar quasi-public entity

The opinion holds that an entity like JAUNT is subject to VFOIA if it is "supported wholly or principally by public funds" under § 2.2-3701. The opinion notes a 2018 AG opinion put JAUNT's public funding at over 84% in 2017, which would place it past the FOIA Advisory Council's two-thirds benchmark, but it declines to decide JAUNT's status definitively because the percentage in any given year is a factual question measured at the time the request is made.

If you sit on the board of a quasi-public entity

Under the opinion, whether your entity is a VFOIA "public body" depends on whether public funds are its principal source. The FOIA Advisory Council's general rule, which the opinion adopts, is that two-thirds (66.6%) or more from public sources qualifies as "principally" public, though a lower percentage can still qualify case-by-case when public funding is the most important single source measured against the number and magnitude of private contributions. The opinion treats competitive grants and procurement-contract revenue as not public funding for this test, while non-competitive grants and appropriation-style support generally count.

If you advise a transit authority or similar joint-venture entity

The opinion frames the "supported principally by public funds" question as a factual one evaluated at the time of each VFOIA request, so an entity's status can change year to year. It also notes the FOIA Council's caution that variable measures, such as procurement proceeds that fluctuate monthly, should not be used to determine an entity's funding level, because that could make an entity subject to VFOIA one month and exempt the next.

Common questions

Q: I want JAUNT's board meeting agendas and minutes. Can I get them under VFOIA?
A: Per this 2021 opinion, yes, if JAUNT is supported principally by public funds (as appears to be the case based on the 2017 funding data cited in the opinion). File a VFOIA request directly with JAUNT.

Q: What's the magic percentage that makes something a "public body" under VFOIA?
A: 66.6% (two-thirds) is the FOIA Advisory Council's general benchmark. Lower percentages can still qualify if the public funding is the primary source compared to many small private sources. There is no rigid cutoff.

Q: My nonprofit gets a competitive grant from the state. Are we a "public body"?
A: Probably not, based on this opinion. The FOIA Advisory Council treats competitive grants as procurement-like transactions, not appropriations. Non-competitive grants or direct appropriations count differently.

Q: What about a 50/50 funded entity?
A: Case-by-case. If the public 50% is one bucket and the private 50% is many small donors, the public funding is likely the most important single source and the entity may be a public body. If the private 50% is one or two large funders, the entity may not be.

Q: Does VFOIA only apply when the entity is currently above the threshold?
A: Per the FOIA Council, yes. Coverage is evaluated at the time of the request. An entity could be a public body one year and not the next. The opinion suggests this introduces complexity but flags that "variable measures" (like monthly procurement revenue) should not be used to determine threshold status.

Citations and references

Statutes:

• Va. Code § 2.2-3700 (VFOIA policy)
• Va. Code § 2.2-3701 (Definitions)
• Va. Code § 30-179 (FOIA Advisory Council)

Cases:

• Transparent GMU v. George Mason Univ., 298 Va. 222 (2019) (Virginia Supreme Court)
• Chase v. DaimlerChrysler Corp., 266 Va. 544 (2003) (Virginia Supreme Court)
• Boyton v. Kilgore, 271 Va. 220 (2006) (Virginia Supreme Court)
• Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91 (2001) (Virginia Supreme Court)
• Lucas v. Woody, 287 Va. 354 (2014) (Virginia Supreme Court)
• Va. Broad Corp. v. Commonwealth, 286 Va. 239 (2013) (Virginia Supreme Court)
• White Dog Publ., Inc. v. Culpeper Cnty. Bd. of Supervisors, 272 Va. 377 (2006) (Virginia Supreme Court)
• Brown v. Lukhard, 229 Va. 316 (1985) (Virginia Supreme Court)
• The Voice v. Appalachian Regional Community Services, 89 Va. Cir. 284 (2014) (Virginia circuit court; statutory construction of "principally")

FOIA Advisory Council opinions:

• AO-36-01, AO-09-05, AO-03-04, AO-06-04, AO-22-04, AO-28-04, AO-07-06, AO-07-07

Prior AG opinions:

• 1982-1983 Op. Va. Att'y Gen. 719 (definitions of "principal")
• 1984-1985 Op. Va. Att'y Gen. 418
• 2018 Op. Va. Att'y Gen. 186 (JAUNT 84% public funding in 2017)
• 2019 Op. Va. Att'y Gen. 86 (tourism council)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-062-Hudson-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

October 8, 2021

The Honorable Sally L. Hudson
Member, Virginia House of Delegates
Post Office Box 2375
Charlottesville, Virginia 22902

Dear Delegate Hudson:

I am responding to your request for an official advisory opinion pursuant to § 2.2-505 of the Code of Virginia.

Issue Presented

You asked whether the Virginia Freedom of Information Act ("VFOIA") applies to JAUNT, Inc. You indicate that JAUNT is a public service transit corporation headquartered in Charlottesville and jointly-owned by the localities that it serves: Charlottesville, Albemarle, Buckingham, Fluvanna, Louisa, and Nelson.

Statutory Background

VFOIA applies to "public bodies" and "requires 'public records' to be 'open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.'" Section 2.2-3701 defines a public body as the following:

[A]ny legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.

As JAUNT is a corporation in the Commonwealth jointly owned by several localities, the crux of this opinion depends on whether JAUNT is "supported wholly or principally by public funds" and, as such, fits within VFOIA's definition of a public body.

Applicable Law and Discussion

The general policy of VFOIA is to ensure "the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." The policy goes on to direct that the provisions of VFOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government."

Turning to the question at hand, for an entity to be "supported wholly ... by public funds," the entity must receive 100 percent of its funding from public sources. Assuming that JAUNT is not supported wholly by public funds, the question becomes whether JAUNT is supported principally by public funds. VFOIA does not specify the amount of public funding an entity must receive to be considered "supported ... principally by public funds" nor does VFOIA define "public funds." Therefore, we must liberally construe the provisions of VFOIA as we look to the rules of statutory construction and interpretation to determine if JAUNT is supported principally by public funds.

When undertaking statutory interpretation, the objective is to "ascertain and give effect to the intention of the legislature." If a statute is unambiguous, the legislature's intent "is usually self-evident from the words used in the statute." For an unambiguous statute, we "must assume that the General Assembly chose, with care, the words it used in enacting the statute." Therefore, we "are bound by the plain meaning of that language ... unless a literal interpretation of the language would result in a manifest absurdity." However, if a statute is ambiguous, issues can arise such as "when its language is 'capable of more senses than one, difficult to comprehend or distinguish, ... open to various interpretations, or wanting clearness or definiteness.'" When trying to determine the meaning of an ambiguous statute, a court "do[es] not isolate particular words or phrases but instead, examine[s] a statute in its entirety." Furthermore, a mere dispute as to the exact meaning of a word or words does not in and of itself qualify a statute as ambiguous.

In The Voice v. Appalachian Regional Community Services, the Circuit Court of Buchanan County held that the language used in the definition of a "public body" is not ambiguous as it clearly defines a class of entities which are subject to the disclosure requirements of VFOIA. The circuit court opined that "the General Assembly's choice of the relative term 'principally' as opposed to" a more specific term must be interpreted as "indicative of the legislature's intent." Since the legislature did not utilize a definitive term such as "majority" nor specify an exact percentage needed for an entity to be principally supported by public funds, the General Assembly expressed "its intent to engage in a relative comparison of each source of an alleged public entity's funding." Therefore, the court held that "whether an organization is 'supported ... principally by public funds' depends on the total contribution from public funds as measured against the number and magnitude of individual private contributions."

Several opinions of the Virginia Freedom of Information Advisory Council ("VFOIA Council") provide guidance on the term "principally" as used in the definition of public body. The VFOIA Council is authorized by statute to furnish, upon request, advisory opinions or guidelines, and other appropriate information regarding VFOIA to any person or public body, in an expeditious manner. The VFOIA Council has opined that, as a general rule, if an entity receives two-thirds (66.6%) or more of its funds from public sources it is considered to be "supported ... principally by public funds." However, because a percentage of less than 66.6 percent could still represent the principal source of funds, each situation must be addressed on a case-by-case basis depending upon the facts involved. Whether an entity is considered a public body at any given time also depends on whether the entity is wholly or principally supported by public funds at the time a request for records is made under VFOIA. The VFOIA Council has also advised that "money received from competitive grants and public contracts should not be considered public funding for [V]FOIA purposes." Competitive grants are "more akin to a procurement transaction than an appropriation of funds." "The process is competitive and is conducted as an arms-length transaction between the government entity providing the grants and the applicants." Alternatively, "grants that are more akin to appropriations or an exercise of governmental largesse may be considered public funds for VFOIA purposes." Finally, "measures that are variable, such as the proceeds of procurement transactions that may vary monthly, should not be used to determine an entity's level of public funding" since "[t]he use of such variable measures may lead to the untenable result that the entity may be subject to [V]FOIA one month then exempt from [V]FOIA the next."

The VFOIA Council has advised that an entity which receives less than two-thirds of its funding from government sources could still be considered a public body. For example, if an entity receives 55 percent of its funding from a government source and the remaining 45 percent of its funding from one single private source, then it would not appear to be principally supported by public funds since the government funds would not be the most important or primary source of money in its operating budget. However, if the remaining 45 percent of the funding consisted of small amounts of money from many different sources, then the 55 percent of the support from a government source could very well be the most important or primary source of funds since the funding from the other sources represents small fractions of the overall budget.

This Office has drawn similar conclusions and opined that the question of whether an entity is supported principally by public funds, and would thus bring it within the scope of VFOIA, is a factual one. In previous Opinions, this Office has pointed to the definitions of "principal" laid out in Webster's New Collegiate Dictionary as "most important, consequential, or influential" and Black's Law Dictionary as "[c]hief; leading; most important or considerable; primary; original" when determining whether an entity is supported principally by public funds. Although this Office concurred that there is no objective standard for determining whether an entity is supported principally by public funds, based on the facts given in prior Opinions, this Office has held that a variety of organizations fell within the definition of a "public body."

It is important to note that these organizations were not governmental agencies in the traditional sense, but received primary and consequential support for their activities from public funds.

Based on the framework outlined in this opinion, if JAUNT is supported principally by public funds then it would be a "public body" subject to the provisions of VFOIA.

Conclusion

Accordingly, it is my opinion that if an organization, such as JAUNT, is principally supported by public funds, then the organization would be a "public body" within the meaning of § 2.2-3701 and would be subject to the provisions of VFOIA.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General