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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-07-17
October
19, 2017
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 (and identical email) of
August 11, 2017.
John
D. Moss
Virginia Beach City Council
c/o Mark D. Stiles, Esq.
City Attorney
Office of the City Attorney
Virginia Beach, Virginia
Dear
Mr. Moss:
You have asked two questions concerning what action
a locality is permitted or required to take in response
to a request for records made under the Virginia Freedom
of Information Act (FOIA) that seeks records related
to an unsolicited proposal made under the Public-Private
Education Facilities and Infrastructure Act of 2002
(§ 56-575.1 et seq. of the Code of Virginia)
(PPEA). First, you asked how a public body should
respond when it receives a FOIA request for a copy
of an unsolicited proposal when the request is made
prior to the locality's determination to accept or
reject the unsolicited proposal. Second, you also
asked what action a locality is permitted or required
to take in response to a FOIA request for a copy of
an unsolicited proposal when the request is made after
a decision to reject but prior to the physical return
of the proposal and accompanying documentation to
the private entity. As background, you indicated that
pursuant to subsection A of Virginia Code § 56-575.3,
a private entity seeking authorization to develop
or operate a qualifying project must first obtain
approval of the responsible public entity. That subsection
also provides that the private entity may submit an
unsolicited proposal or the public entity may request
proposals or invite bids. Different procurement procedures
apply, depending on whether the proposal is unsolicited
or requested by the public body. The questions you
presented to this office concern unsolicited proposals
submitted by the private entity, so this opinion does
not address proposals requested by the public body.
As part of the procedure addressing unsolicited proposals,
subsection A of § 56-575.4 requires 10 enumerated
types of information and material to be submitted
in conjunction with the request for approval. In regard
to this information and material, subsection C of
§ 56-575.3 provides as follows:
Upon receipt by the responsible public entity of
a proposal submitted by a private entity initiating
the approval process pursuant to subsection A of
§ 56-575.4, the responsible public entity shall
determine whether to accept such proposal for consideration
in accordance with § 56-575.16. If the responsible
public entity determines not to accept for consideration
the proposal submitted by the private entity pursuant
to subsection A of § 56-575.4, it shall return
the proposal, together with all fees and accompanying
documentation, to the private entity.
Although
you did not mention it, I note that § 56-575.17
also sets out a scheme for posting conceptual proposals,
taking public comment, and providing public access
to PPEA records.
The
relevant policy of FOIA stated 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."
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." This policy
is implemented through the procedures for making and
responding to a records request set forth in §
2.2-3704. As you noted, subsection A of § 2.2-3704
provides that "[e]xcept as otherwise specifically
provided by law, all public records shall be open
... during the regular office hours of the custodian
of such records." As an example, as noted above,
§ 56-575.17 sets out some specific rules addressing
posting conceptual proposals, taking public comment,
and providing public access to records under the PPEA.
Subsection E of that section reads as follows: "Cost
estimates relating to a proposed procurement transaction
prepared by or for a responsible public entity shall
not be open to public inspection." This provision
is clearly an exception to the default rule of FOIA
mandating disclosure of public records. In contrast,
consider subsection F of the same section, which states
that "[a]ny inspection of procurement transaction
records under this section shall be subject to reasonable
restrictions to ensure the security and integrity
of the records." While different, this language
comports with the provision of FOIA in subsection
A of § 2.2-3704, which states that "[t]he
custodian of such records shall take all necessary
precautions for their preservation and safekeeping."
Subsections E and F of § 56-575.17 appear to
apply regardless of the status of a PPEA transaction
as solicited, unsolicited, accepted, or rejected.
The remainder of § 56-575.17 does not appear
to address the treatment of unsolicited proposals
before a decision to accept or reject has been made,
or once a decision to reject has been made, and therefore
does not affect the analysis of your questions.
Additionally, before proceeding with further analysis
of your questions, note that subdivision 11 of §
2.2-3705.6 sets out a FOIA exemption for certain procurement
records under the PPEA as follows:
11. a. Memoranda, staff evaluations, or other information
prepared by the responsible public entity, its staff,
outside advisors, or consultants exclusively for
the evaluation and negotiation of proposals filed
under the Public-Private Transportation Act of 1995
(§ 33.2-1800 et seq.) or the Public-Private
Education Facilities and Infrastructure Act of 2002
(§ 56-575.1 et seq.) where (i) if such information
was made public prior to or after the execution
of an interim or a comprehensive agreement, §
33.2-1820 or 56-575.17 notwithstanding, the financial
interest or bargaining position of the public entity
would be adversely affected and (ii) the basis for
the determination required in clause (i) is documented
in writing by the responsible public entity; and
b. Information provided by a private entity to a
responsible public entity, affected jurisdiction,
or affected local jurisdiction pursuant to the provisions
of the Public-Private Transportation Act of 1995
(§ 33.2-1800 et seq.) or the Public-Private
Education Facilities and Infrastructure Act of 2002
(§ 56-575.1 et seq.) if disclosure of such
information would reveal (i) trade secrets of the
private entity as defined in the Uniform Trade Secrets
Act (§ 59.1-336 et seq.); (ii) financial information
of the private entity, including balance sheets
and financial statements, that are not generally
available to the public through regulatory disclosure
or otherwise; or (iii) other information submitted
by the private entity where if such information
was made public prior to the execution of an interim
agreement or a comprehensive agreement, the financial
interest or bargaining position of the public or
private entity would be adversely affected. In order
for the information specified in clauses (i), (ii),
and (iii) to be excluded from the provisions of
this chapter, the private entity shall make a written
request to the responsible public entity:
(1)
Invoking such exclusion upon submission of the data
or other materials for which protection from disclosure
is sought;
(2) Identifying with specificity the data or other
materials for which protection is sought; and
(3) Stating the reasons why protection is necessary.
The responsible public entity shall determine whether
the requested exclusion from disclosure is necessary
to protect the trade secrets or financial information
of the private entity. To protect other information
submitted by the private entity from disclosure,
the responsible public entity shall determine whether
public disclosure prior to the execution of an interim
agreement or a comprehensive agreement would adversely
affect the financial interest or bargaining position
of the public or private entity. The responsible
public entity shall make a written determination
of the nature and scope of the protection to be
afforded by the responsible public entity under
this subdivision. Once a written determination is
made by the responsible public entity, the information
afforded protection under this subdivision shall
continue to be protected from disclosure when in
the possession of any affected jurisdiction or affected
local jurisdiction.
Except as specifically provided in subdivision 11
a, nothing in this subdivision shall be construed
to authorize the withholding of (a) procurement
records as required by § 33.2-1820 or 56-575.17;
(b) information concerning the terms and conditions
of any interim or comprehensive agreement, service
contract, lease, partnership, or any agreement of
any kind entered into by the responsible public
entity and the private entity; (c) information concerning
the terms and conditions of any financing arrangement
that involves the use of any public funds; or (d)
information concerning the performance of any private
entity developing or operating a qualifying transportation
facility or a qualifying project.
For
the purposes of this subdivision, the terms "affected
jurisdiction," "affected local jurisdiction,"
"comprehensive agreement," "interim
agreement," "qualifying project,"
"qualifying transportation facility,"
"responsible public entity," and "private
entity" shall mean the same as those terms
are defined in the Public-Private Transportation
Act of 1995 (§ 33.2-1800 et seq.) or in the
Public-Private Education Facilities and Infrastructure
Act of 2002 (§ 56-575.1 et seq.).
It
is my understanding that the provisions of this FOIA
exemption were written specifically to coincide with
the access and disclosure provisions of the PPEA.
Reading
all of these provisions together in the context of
your questions, it appears that the short answer is
that the requested records must be disclosed unless
they are exempt under subdivision 11 of § 2.2-3705.6
as set out above. More specifically, your first question
asked how a public body should respond when it receives
a FOIA request for a copy of an unsolicited proposal
when the request is made prior to the locality's determination
to accept or reject the unsolicited proposal. As quoted
previously, subsection C of § 56-575.3 provides
that if an unsolicited proposal is rejected, then
the public body "shall return the proposal, together
with all fees and accompanying documentation, to the
private entity." If the materials were no longer
in the public body's possession, then the proper response
under FOIA would be to state that the public body
does not have the requested records (i.e., the records
cannot be found or do not exist, as set forth in subdivision
B 3 of § 2.2-3704). However, it appears that
both the PPEA and FOIA are silent regarding what happens
if a records request is received before the decision
to accept or reject an unsolicited proposal has been
made. In the absence of specific statutory guidance,
the default rule of FOIA requiring mandatory disclosure
of public records would apply. Therefore, such records
must be disclosed under FOIA unless they are exempt
or prohibited from release (for example, if subdivision
11 of § 2.2-3705.6 or subsection E of §
56-575.17 applied as quoted above). The same analysis
would apply to your second question, which asked what
action a locality is permitted or required to take
in response to a FOIA request for a copy of an unsolicited
proposal when the request is made after a decision
to reject but prior to the physical return of the
proposal and accompanying documentation to the private
entity. Again, it appears that both the PPEA and FOIA
are silent about this specific factual scenario, and
therefore the default rule of FOIA requiring that
records must be disclosed unless an exemption or prohibition
would apply.
Thank
you for contacting this office. I hope that I have
been of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
1Note
that the same exemption also addresses records under
the Public-Private Transportation Act of 1995 (§
33.2-1800 et seq.).
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