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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-14
January
29 , 2014
Frederick
Kunkle
The Washington Post
Washington, D.C.
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 dated December 13, 2013.
Dear
Mr. Kunkle:
You have asked several questions regarding the denial
of your request for records of the Virginia Economic
Development Partnership (VEDP) under the Virginia
Freedom of Information Act (FOIA). As background,
you indicated you requested documents from VEDP concerning
Governor Terence "Terry" McAuliffe, who
was a candidate for Governor at the time of your initial
request in April, 2013, and certain related businesses
and projects.1 You stated that VEDP denied
your request and initially cited exemptions for economic
development records,2 working papers and
correspondence,3 and contract negotiation
records. 4 You then requested that VEDP
reconsider its denial and "use its discretion
to release some documents in part or with redactions."
The response to this request for reconsideration was
a second denial, which cited only the economic development
records exemption. You stated that you renewed your
request again after Governor McAuliffe's victory in
the general election in November, but were again denied.
That third denial stated that since the status of
the project had not changed, the response was the
same. You also indicated that various interviews with
Mr. McAuliffe and others suggest there may have been
some confusion regarding the underlying business transactions
at issue. Further details will be set forth as needed
below.
The general policy of FOIA is expressed in §
2.2-3701: The affairs of government are not intended
to be conducted in an atmosphere of secrecy since
at all times the public is to be the beneficiary of
any action taken at any level of government....All
public records and meetings shall be presumed open,
unless an exemption is properly invoked. As a
preliminary matter we must establish that VEDP is
a public body and that the records you seek are public
records. The definition of public body in § 2.2-3701
includes any legislative body, authority, board,
bureau, commission, district or agency of the Commonwealth
or of any political subdivision of the Commonwealth.
There is no question that VEDP is a public body subject
to the provisions of FOIA under this definition.5
The definition of public records includes
all writings and recordings...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.
VEDP confirmed in its initial denial of your request
that it was "working on an ongoing economic development
project" involving two of the companies named
in your request. That denial further described the
documents being withheld as including
business
plans, project plans, information gathered in written
documents or PowerPoint slides in preparation for
confidential project meetings, prospect data sheets,
notes from confidential project meetings, maps and
other information regarding potential project sites,
including utility infrastructure and environmental
issues, internal and external emails regarding the
status of the project and the company's plans for
visiting certain project sites, drafts of incentive
applications and incentive proposals, return on
investment analyses, and drafts of unreleased news
releases and internal and external emails concerning
such news releases.
Based
upon VEDP's characterization there is no question
that the records you requested from VEDP are public
records subject to FOIA, as they are records prepared,
owned, or possessed by VEDP in the transaction of
its public business.
In your inquiry it appears that you assert that the
requested records should be disclosed on two separate
grounds, one factual, and one based on the exercise
of discretion. As to the factual matter, it appears
that there may have been some confusing statements
regarding the sale of a certain plant, which VEDP
clarified in its second response by stating that the
plant was never for sale. You stated that interviews
with Mr. McAuliffe, his business partners, and public
officials had suggested uncertainty about the issue
and that there may have been records of inquiries
about buying the plant. You then asserted that any
communications regarding attempts to purchase the
plant would not be subject to exemption, given the
statement by VEDP that the plant was never for sale.
However, you based this assertion on the language
of the contract negotiation records exemption. That
exemption allows [r]ecords relating to the negotiation
and award of a specific contract where competition
or bargaining is involved and where the release of
such records would adversely affect the bargaining
position or negotiating strategy of the public body
to be withheld, but also states that [s]uch
records shall not be withheld after the public body
has made a decision to award or not to award the contract.6
Based on this language and VEDP's assertion that the
plant was not for sale, you contend that any communications
about purchasing the plant would be open, because
such a purchase "had been ruled out." I
would agree that if a contract had been under negotiation
and a decision not to award had been made, then related
records would not be subject to this exemption. However,
note that the response to your renewed request did
not say that a purchase had been "ruled out,"
it stated that the plant at issue was never for sale.
In other words, it appears from the later clarification
that there was in fact no contract being negotiated
for the sale of the plant at any time.
Instead, it appears from VEDP's response that there
may be records related to repurposing the plant and
that the release of those records would have "a
deleterious impact on their current and ongoing discussions
with financiers and off-take providers" and the
company that owns the plant. If the deleterious impacts
at issue were solely on the third party business entities,
then the contract negotiation records exemption would
not apply, as that exemption by its own terms is limited
to records where release would adversely affect
the bargaining position or negotiating strategy of
the public body. [Emphasis added.]
However, VEDP specifically stated in this second denial
that not only were the companies
competing
for success in their markets, we are competing with
other states to ensure that as much of their business
as possible is developed in the Commonwealth....Disclosing
our public records at this point would bring an
unwelcome public light (and possible political frenzy)
to their confidential negotiations and may cause
them to take their business interests elsewhere
or may cause them to be unable to execute their
business plan. In these events, the financial interest
of the Commonwealth would be adversely affected
by the loss of the tax base, the employment base
and the resulting indirect and spin-off opportunities
for our business community.
Additionally,
observe that VEDP cited only the economic development
records exemption in its response to your request
for reconsideration.7 That exemption addresses
two different types of documents. The first part of
the exemption allows a public body to withhold
[c]onfidential proprietary records, voluntarily
provided by private business pursuant to a promise
of confidentiality from a public body, used by the
public body for business, trade and tourism development
or retention. Among other records, this part
of the exemption would appear to apply to documents
submitted to VEDP pursuant to a promise of confidentiality
concerning the repurposing or proposed purchase of
a plant where there may have been no contract under
negotiation, but the records would be used by VEDP
for business, trade and tourism development or
retention. The second part of this exemption
allows a public body to withhold memoranda, working
papers or other records related to businesses that
are considering locating or expanding in Virginia,
prepared by a public body, where competition or bargaining
is involved and where, if such records are made public,
the financial interest of the public body would be
adversely affected. This part of the exemption
would appear to cover the relevant records prepared
by VEDP concerning these transactions. Note that the
language of VEDP's denial, as quoted above, clearly
tracks the language of this part of the economic development
exemption in asserting that competition is involved
and that the financial interests of the Commonwealth
would be adversely affected if the records were released.
Therefore it appears based on the facts presented,
including the denial by VEDP quoted above, that the
economic development records exemption was relied
upon in the response to your request for reconsideration.
FOIA provides in subsection B of § 2.2-3700 that
any exemption from public access shall be narrowly
construed. Even applying this narrow construction
rule, when the response is analyzed in the context
of the two clauses of the economic development records
exemption, it appears that the records at issue were
properly withheld because the records as described
fall within the terms of the exemption.
In your inquiry to this office, you also suggest that
the denial by VEDP is overbroad, and that at least
some portions of the records sought should be released
because the exemptions cited by VEDP are discretionary.
You are correct that each of the exemptions cited
is discretionary, as each is preceded by the statement
that [t]he following records are excluded from
the provisions of this chapter but may be disclosed
by the custodian in his discretion, except where such
disclosure is prohibited by law.8
Therefore a custodian may choose to release records
which are exempt from mandatory disclosure under FOIA,
unless another law prohibits such release. If another
law prohibits release, then the prohibition is controlling
and there is no discretion to be exercised.9
Additionally, subdivision B 1 of § 2.2-3704
provides that if the custodian has exercised his
discretion to withhold the records in their entirety,
as was done in this instance, then the response shall
identify with reasonable particularity the volume
and subject matter of withheld records, and cite,
as to each category of withheld records, the specific
Code section that authorizes the withholding of the
records.10 FOIA is a procedural law,
and so long as the response follows the statutory
procedure, nothing more than noted above is required
under FOIA when a custodian exercises the discretion
to withhold requested records in their entirety.
You contend that "where the records relate to
a public-private development involving the governor-elect,
the public interest in disclosure far outweighs whatever
asserted harm would result from disclosure."
While we do appreciate the public interest represented
and the value of transparency in government, FOIA
itself contains no such balancing test for exemptions.
Instead, the General Assembly has set the default
rule that all public records are subject to mandatory
disclosure unless exempt or prohibited from release,
and then chosen by statute which records are so exempt
or prohibited from release. Once a record is determined
to be exempt, it does not have to be disclosed, but
it still may be disclosed in the discretion of the
custodian, unless some other law prohibits its release.
Assuming no such prohibition applies, FOIA does not
set forth any standards or limitations guiding the
use of discretion to disclose exempt records, nor
does it establish what might constitute an abuse of
that discretion.11 The statutory remedy
to a FOIA violation is to bring a petition for mandamus
or injunction.12 Among other provisions,
subsection E of § 2.2-3714 states that the
public body shall bear the burden of proof to establish
an exemption by a preponderance of the evidence.
However, the remedy provisions likewise do not address
the use or abuse of discretion by a records custodian.
Reading these provisions together, it appears that
all that is required is for a public body to establish
that an exemption applies and to so inform the requester
in its response; no further justification or explanation
is required. Therefore an argument balancing the public
interest versus the harm in disclosure might help
persuade a custodian to exercise his discretion to
release exempt records, but it is not mandatory for
a public body to engage in such a balancing test.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Governor
McAuliffe won the November election and has since taken
office.
2Subdivision 3 of § 2.2-3705.6, which
provides an exemption for [c]onfidential proprietary
records, voluntarily provided by private business pursuant
to a promise of confidentiality from a public body,
used by the public body for business, trade and tourism
development or retention; and memoranda, working papers
or other records related to businesses that are considering
locating or expanding in Virginia, prepared by a public
body, where competition or bargaining is involved and
where, if such records are made public, the financial
interest of the public body would be adversely affected.
3Subdivision 2 of § 2.2-3705.7, which
provides an exemption for [w]orking papers and correspondence
of the Office of the Governor; Lieutenant Governor;
the Attorney General; the members of the General Assembly,
the Division of Legislative Services, or the Clerks
of the House of Delegates and the Senate of Virginia;
the mayor or chief executive officer of any political
subdivision of the Commonwealth; or the president or
other chief executive officer of any public institution
of higher education in Virginia. However, no record,
which is otherwise open to inspection under this chapter,
shall be deemed exempt by virtue of the fact that it
has been attached to or incorporated within any working
paper or correspondence.
4Subdivision 12 of § 2.2-3705.1, which
provides an exemption for [r]ecords relating to
the negotiation and award of a specific contract where
competition or bargaining is involved and where the
release of such records would adversely affect the bargaining
position or negotiating strategy of the public body.
Such records shall not be withheld after the public
body has made a decision to award or not to award the
contract. In the case of procurement transactions conducted
pursuant to the Virginia Public Procurement Act (§
2.2-4300 et seq.), the provisions of this subdivision
shall not apply, and any release of records relating
to such transactions shall be governed by the Virginia
Public Procurement Act.
5See subsection C of § 2.2-2234 establishing
the Virginia Economic Development Partnership Authority
(there is created a political subdivision of the Commonwealth
to be known as the Virginia Economic Development Partnership
Authority).
6Subdivision 12 of § 2.2-3705.1.
7Note that VEDP did not disclaim or withdraw
its earlier citations to the contract negotiations and
working papers exemptions, but in its response to your
request for reconsideration it only cited the economic
development exemption. FOIA does not prohibit public
bodies from citing multiple exemptions, nor does a public
body waive an exemption even if it fails to specify
it in its response. See Lawrence v. Jenkins,
258 Va. 598 (1999) (failure to cite a specific exemption
within the five working day time limit did not violate
requester's FOIA rights, because requester had no right
to exempt records).
8The same prefatory language concerning the
discretion of the custodian is used repeatedly in §§
2.2-3705.1 through 2.2-3705.7, and again in subdivision
A 2 of § 2.2-3706.
9Note that there is an exception to this
general rule in the context of certain law-enforcement
records not at issue here due to the conflict resolution
provision in § 2.2-3706. See Freedom of Information
Advisory Opinion 07 (2005).
10Note that similar language concerning the
exercise of discretion to withhold records is used in
subdivision B 2 of the same section for responses that
provide the requested records in part and withhold in
part.
11See Freedom of Information Advisory
Opinions 9 (2008) and 26 (2004)("The question of
whether the Board has abused its discretion is beyond
the statutory authority of this office, as 'abuse of
discretion' is a legal standard outside the scope of
FOIA.").
12§§ 2.2-3713 and 2.2-3714.
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