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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
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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