FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Leslie L. Lilley,
City of Virginia Beach
Virginia Beach, VA
The staff of
the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your letter
of March 8, 2002, and our discussions on March 29, and April
Dear Mr. Lilley:
You have asked whether
a public body may properly withhold records generated during
contract negotiations under the Freedom of Information Act
(FOIA). You advise that the records consist of drafts, documents
and internal correspondence prepared by the public body for
the purposes of negotiating with potential or current contractors
and, if released, could adversely affect the public body's
bargaining position. You state that these records reveal your
negotiating strategy and supporting rationale for contract
pricing, and other terms and conditions of the transaction.
You indicate that the correspondence exchanged during the
contract negotiations is typically between two public officials
and does not include legal review. Finally, you state that
while many of these contract negotiations are undertaken in
accordance with the Virginia Public Procurement Act (§ 2.2-4300
et seq.), not all contracts negotiated by the public body
are within the purview of that Act.1
of the Code of Virginia defines public records as all writings
and recordings that consist of letters, words or numbers,
or their equivalent, set down by handwriting, typewriting,
printing, photostatting, photography, magnetic impulse, optical
or magneto-optical form, mechanical or electronic recording
or other form of data compilation, however stored, and regardless
of physical form or characteristics, prepared or owned by,
or in the possession of a public body or its officers, employees
or agents in the transaction of public business. This
office has previously opined that draft copies of public records
are included within the definition of public records.2
Subsection A of
§ 2.2-3704 expressly provides that, [e]xcept as otherwise
specifically provided by law, all public records shall be
open to inspection and copying by any citizens of the Commonwealth.
Therefore, unless one of the 77 record exemptions listed in
subsection A of § 2.2-3705 or a specific statutory provision
elsewhere in the Code exempts the record, it is subject to
the mandatory disclosure requirements of FOIA. Generally,
under FOIA, with the exception of scholastic,3
personnel4 and medical5 records, exemptions
are not broadly written (i.e., they do not apply to all public
bodies), rather they are specific to a named agency of government
for named records of that agency. For example, subdivision
A. 33. specifically exempts [p]ersonal information
filed with the Virginia Housing Department Authority concerning
individuals who have applied for or received loans or other
housing assistance..., and subsection A. 66. exempts [d]ocuments
and other information of a proprietary nature furnished by
a supplier of charitable gaming supplies to the Charitable
With respect to
records prepared for contract negotiations, FOIA does not
contain a general exemption relating to such records. FOIA
does, however, contain a number of related exemptions, again
for specifically named agencies. Examples of these exemptions
can be found in subdivision A. 17. of § 2.2-3705, which allows
the Department of Transportation to exempt contract cost
estimates prepared for [its] confidential use,
and subdivision A. 60. of § 2.2-3705, which provides a parallel
exemption for Virginia Commonwealth University. However, as
noted above, there is no applicable FOIA records exemption
for political subdivisions of the Commonwealth generally or
the City of Virginia Beach in particular.
Exemptions to the
release of records can also be found elsewhere in the Code.
The Virginia Public Procurement Act (VPPA), which governs
the procurement transactions of public bodies, states at §
2.2-4342 that, [e]xcept as provided in this section, all
proceedings, records, contracts and other public records relating
to procurement transactions shall be open to the inspection
of any citizen, or any interested person, firm or corporation,
in accordance with the Virginia Freedom of Information Act
(§ 2.2-3700 et seq.). Subsection D of the same section
provides that [a]ny competitive negotiation offeror, upon
request, shall be afforded the opportunity to inspect proposal
records within a reasonable time after the evaluation and
negotiations of proposals are completed but prior to award,
except in the event that the public body decides not to accept
any of the proposals and to reopen the contract. Otherwise,
proposal records shall be open to public inspection only after
award of the contract. While the disclosure of certain
procurement records is limited by the VPPA, it does not exempt
records created by a public body related to the negotiation
of contract terms and conditions. Accordingly, these records
must be disclosed, if requested.
of the records you describe is likely to impact the bargaining
position of the City, FOIA requires disclosure absent an exemption.
The rules of statutory construction mandate that we examine
the language of § 2.2-3700 in its entirety and determine the
intent of the General Assembly from the words contained in
the statute.6 When the language of a statute is
plain and unambiguous, we are bound by the plain meaning of
that language.7 Here again, FOIA ensures citizen
access to records in the custody of public officials and presumes
public records are open unless there is an exemption.8
The exemptions must be narrowly construed as required by FOIA.
Despite the potential adverse effect on the public body's
bargaining position, FOIA's mandatory disclosure requirements
imposed upon these contract negotiation records must prevail.
This office is tasked with opining on the requirements of
the current law, not what the law should be. Perhaps this
is an issue that should be addressed by the General Assembly.
In conclusion, FOIA
neither provides a general exemption for records generated
during contract negotiations or a specific exemption for the
City of Virginia Beach, nor does an exemption for such records
exist elsewhere in the Code. Without an exemption, the record
must be disclosed.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
Freedom of Information Advisory Opinion 3 (2000).
A. 3. of § 2.2-3705.
A. 4. of § 2.2-3705.
A. 5. of § 2.2-3705.
v. Fulghum, 261 Va. 73, 540 S.E.2d at 494 (2001).
B of § 2.2-3700.