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

Plain-English summary

Delegate Hudson asked whether the Virginia Freedom of Information Act (VFOIA) applies to JAUNT, a transit corporation jointly owned by several localities. The AG answered conditionally: if JAUNT is principally supported by public funds, it is a "public body" under § 2.2-3701 and is subject to VFOIA. The opinion does not calculate JAUNT's funding or definitively decide its status.

The statute defines public body to include organizations and corporations in Virginia "supported wholly or principally by public funds." The AG explained that wholly supported means all funding comes from public sources. For principally supported entities, the statute sets no exact percentage. The opinion quotes the FOIA Advisory Council's general rule that two-thirds or more of an entity's funding from public sources qualifies, while a lower percentage may still qualify on the particular facts.

The opinion also discusses The Voice v. Appalachian Regional Community Services, which compares the total public contribution with the number and size of individual private contributions. A large public source may be principal even below two-thirds if the rest consists of many small private sources.

The FOIA Advisory Council guidance cited by the AG excludes money from competitive grants and public contracts from public funding for this test. It says grants akin to appropriations may count. The opinion says the relevant funding status is assessed when a records request is made.

What this means for you

If you request records from JAUNT

The opinion supplies a funding test; it does not determine JAUNT's actual funding percentage. Whether JAUNT is a VFOIA public body depends on whether its public funding is principal at the time of the request.

If you manage a partly public organization

The AG explains that there is no rigid percentage below which VFOIA can never apply. The analysis compares public funds with individual private contributions and distinguishes appropriations from competitive grants and public-contract revenue.

Currency note

The opinion was issued in 2021. Check current law and later authority before applying it to a present records request.

Common questions

Is two-thirds public funding an absolute threshold?
No. It is the FOIA Advisory Council's general rule cited by the AG. A lower percentage can still be principal depending on the number and magnitude of private sources.

Did the AG decide that JAUNT itself was covered?
No. The AG concluded that JAUNT would be a public body if it was principally supported by public funds; the opinion gives no JAUNT funding figure.

Do competitive grants count as public funding here?
The AG quotes Council guidance saying money from competitive grants and public contracts should not count as public funding for VFOIA purposes. Grants closer to appropriations may count.

Background and statutory framework

Section 2.2-3701 includes certain organizations and corporations supported wholly or principally by public funds in its definition of public body. The AG considered the Council's funding guidance and a circuit court's relative-comparison approach, then gave a conditional conclusion for JAUNT. The opinion does not apply a percentage to JAUNT or decide its status for a particular records request.

Citations and references

• Va. Code § 2.2-3701 (definition of public body)
• The Voice v. Appalachian Regional Community Services (relative comparison of funding sources)

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