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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-03-16

September 14, 2016

Joe Webster
Alexandria, Virginia

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 email message and attachment dated June 23, 2016.

Dear Mr. Webster:

You have asked for an opinion regarding the response you received from the City of Alexandria (the City) denying your request for responses received by the City to a Request for Information (RFI) put out by the City. As background, you included the electronic mail chain showing your request, the City's denial of your request, and your response to that denial asking for reconsideration, as well as a copy of the RFI with your request for this opinion. The RFI seeks information concerning a "Partnership for Deployment Of A Citywide Fiber Optic Institutional Network And For Fiber To The Premises." The RFI explains it wishes respondents to address to related initiatives, one for "a City-initiated fiber backbone infrastructure to support data transport among the City's public institutions" and the other "to enhance the broad band connectivity of the City's residents, businesses, and anchor institutions." The City denied your request for responses to the RFI citing two exemptions from mandatory disclosure under the Virginia Freedom of Information Act (FOIA). The first exclusion cited addresses information that would jeopardize contract negotiations, subdivision 12 of § 2.2-3705.1 (the contract exemption), and the other addresses certain trade secrets and proprietary records in the context of a franchise granted by a locality, subdivision 13 of § 2.2-3705.6 (the franchise exemption). In your response to the denial of your request, you drew attention to the following paragraph from the RFI:

Prospective partners are strongly encouraged to respond to this RFI. The information received in response to this RFI will help determine the direction of an anticipated Request for Proposal (RFP) relating to the City-initiated project. However, there is no guarantee an RFP will be developed as a result of this RFI. Further, responding to the RFI is not a guarantee of a contract award. The City reserves the right to withdraw the RFI or any subsequent RFP, or decline to award a contract. Though no contracts or formal relationships will be established through this RFI, it will provide valuable information that will significantly influence the City's fiber project and identify a community of potential service providers for the City's homes, businesses, and institutions. It will also enable the City to understand the capabilities and interests of potential Partners and determine how to best include them.

Based on this language, you argued that neither exemption cited by the City would apply to the responses to the RFI because the responses to the RFI were not part of any contract negotiations or a franchise application. Further facts will be presented as appropriate with the analysis below.

The policy of FOIA expressed in subsection B of § 2.2-3700 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." Regarding public records, the policy further states that "[u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ... all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked." The policy also provides guidance for the interpretation of exemptions: "Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." To implement this policy, subdivisions B 1 and B 2 of § 2.2-3704 specify that if a record is withheld in whole or in part, the public body must "cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records."

As mentioned previously, it appears from the materials you provided that the City denied your request in its entirety, citing the contracts exemption and the franchise exemption. Considering the contract exemption first, at the time of your request and response,1 that exemption read in full as follows:

The 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:

* * *

12. Records 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.

You contend that because the RFI explicitly states that "no contracts or formal relationships will be established through this RFI," the contract exemption at issue cannot apply as a factual matter. Presuming that there is in fact no "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," then your contention would be correct. Applying the narrow construction rule as directed by the policy of FOIA, it is clear that the quoted language limits the application of this exemption. If there are no negotiations regarding a specific contract, and there is no competition or bargaining involved, then there would be no bargaining position or negotiating strategy that could be adversely affected. Under such a circumstance, the contract exemption cannot apply.

The City also cited the franchise exemption in its denial of your request. At that time the franchise exemption read in full as follows:

The 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:

* * *

13. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), or confidential proprietary records that are not generally available to the public through regulatory disclosure or otherwise, provided by a (a) bidder or applicant for a franchise or (b) franchisee under Chapter 21 (§ 15.2-2100 et seq.) of Title 15.2 to the applicable franchising authority pursuant to a promise of confidentiality from the franchising authority, to the extent the records relate to the bidder's, applicant's, or franchisee's financial capacity or provision of new services, adoption of new technologies or implementation of improvements, where such new services, technologies or improvements have not been implemented by the franchisee on a nonexperimental scale in the franchise area, and where, if such records were made public, the competitive advantage or financial interests of the franchisee would be adversely affected.

You contend that this exemption also would not apply as the RFI makes no mention of a franchise award, but instead states explicitly that "no contracts or formal relationships will be established through this RFI." Therefore someone responding to the RFI would not be a bidder or an applicant for a franchise. Assuming this statement is accurate, then clause (a) of the franchise exemption, requiring that the records be provided by "bidder or applicant for a franchise," could not be satisfied. However, we have no information regarding whether any respondent to the RFI is (or was at the time of response) already a franchisee of the City as provided for in clause (b) of the franchise exemption. If so, then it is possible that the records provided by a current franchisee in response to the RFI could meet the requirements of the franchise exemption. For example, I note that the RFI states that for over 20 years the City and the City school system have each operated "networks over dark fiber provided and maintained by the local cable television network operator" and that "the current Fiber Use Agreement" would expire in October, 2016. Taking notice of legislative history indicating that the franchise exemption was originally enacted for cable franchises, it is entirely possible (but not evidenced in the facts provided) that the current cable provider is a franchisee, and may have responded to the RFI. Note that in such a case the records would still have to meet all of the elements of the franchise exemption:

The records would have to be "[t]rade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), or confidential proprietary records that are not generally available to the public through regulatory disclosure or otherwise;"

that were provided by a "franchisee under Chapter 21 (§ 15.2-2100 et seq.) of Title 15.2 to the applicable franchising authority pursuant to a promise of confidentiality from the franchising authority;"

that "relate to the bidder's, applicant's, or franchisee's financial capacity or provision of new services, adoption of new technologies or implementation of improvements, where such new services, technologies or improvements have not been implemented by the franchisee on a nonexperimental scale in the franchise area;" and

"if such records were made public, the competitive advantage or financial interests of the franchisee would be adversely affected."

Given that none of the responses to the RFI were provided to you, we lack the facts that would be necessary to determine whether these elements of the exemption would be satisfied, even if a respondent was a current franchisee. Lacking any additional facts, and solely considering the argument you present that by its own terms the RFI does not seek applications or bids for the award of a franchise, then you would be correct that the franchise exemption would not apply.

However, as stated in many prior opinions, this office has no investigative powers and is not a trier of fact. I note that the closing date stated on the RFI was September 3, 2015 and as mentioned above, the RFI indicates that the City's current Fiber Use Agreement expires in October, 2016. The materials you provided did not state any facts regarding what has happened since the issuance and closing of this RFI, for example whether the City has issued an RFP or whether the City has actually awarded any contract(s) or franchise(s) concerning the subject matter of the RFI since that time. Given the timing involved, it seems likely that there may be additional, relevant facts that would have bearing on this opinion. Therefore, while we agree that neither the contract exemption nor the franchise exemption would apply to allow responses to this RFI to be withheld under the facts as you have presented them, the terms of the RFI itself make it appear likely that there may be additional facts of which this office is currently unaware that could change the conclusion as to whether the records at issue must be disclosed.

Finally, addressing RFI's in general, it is my understanding that RFI's are used to gather information before deciding whether to seek a contract or to procure goods or services. In that usage RFI's are preliminary to a procurement transaction or contract negotiations, and not directly part of such transactions or negotiations. Note that in addition to the contract and franchise exemptions discussed above, there are also exemptions for economic development records, procurement records, and other types of trade secrets and proprietary records found in § 2.2-3705.6. Because they are preliminary to such transactions, responses to RFI's typically would not appear to be covered by the contract exemption discussed above or exemptions for procurement transactions. In fact, none of the exemptions for proprietary records or trade secrets specifically addresses RFI's, and there does not appear to be a specific exemption addressing RFI's anywhere else in FOIA or in the various procurement laws. However, we recognize that it is possible that a response to an RFI, particularly in a technical area such as providing a fiber network, could involve trade secrets or other information a respondent might consider proprietary and wish to keep confidential. While some responses to RFI's might fall under an existing exemption in specific factual circumstances, such as the possibility of a current franchisee providing trade secrets or proprietary information under a promise of confidentiality as described above, there is no general exemption for responses to RFI's. As stated above, FOIA provides that all public records are presumed to be open and must be disclosed upon request unless a specific exemption excludes them from mandatory disclosure. In the absence of a specific legal provision exempting responses to RFI's from disclosure, we must conclude that such responses are open to the public. If this result is not the intent of the General Assembly, it may wish to consider legislation to protect such records.

Thank you for contacting this office. I hope that I have been of assistance.

 

Sincerely,

Maria J.K. Everett
Executive Director

1Note that technical amendments were made to both exemptions at issue in this opinion (and many others) effective July 1, 2016, by legislation enacted as a response to the Supreme Court of Virginia's decision in Department of Corrections v. Surovell, 776 S.E.2d 579. Among other changes made by the legislation, the amendments to the exemptions replaced the term "records" with the term "information." The legislative summary to those Acts states in relevant part as follows: "The bill defines the term 'information' and provides that it is declaratory of the law as is it existed prior to the September 17, 2015, decision of the Supreme Court of Virginia in the case of the Department of Corrections v. Surovell. " (2016 Acts of Assembly, cc. 620 and 716). While it appears that the amendments were technical and not meant to change the substance of the exemptions, because your request and its denial were made prior to July 1, 2016, we consider the language of the exemptions as they were written at that time.
2See Legislative Summary of 1997 Acts of Assembly, c. 295 ("Provides an exemption for confidential proprietary records which are provided by a franchisee under § 15.1-23.1 to its franchising authority (that is, a cable company to a locality in connection with a cable franchise agreement) pursuant to a promise of confidentiality from the franchising authority...").
3See, e.g., subdivisions 10 and 11 of § 2.2-3705.6, referring to the Virginia Public Procurement Act (subdivision 10) and the Public-Private Transportation Act of 1995 and the Public-Private Education Facilities and Infrastructure Act of 2002 (subdivision 11).

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