FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
December 29, 2005, Richmond
of Information Advisory Council1 (the Council) held its fifth
and final meeting of 2005 in order to consider legislative
proposals concerning (i) public access to procurement records
under the PPEA and PPTA2 and (ii) mandating additional responses
to FOIA requests by public bodies. The Council received a
progress report from its PPEA/PPTA Subcommittee and voted
to adopt the legislative draft recommended by the PPEA/PPTA
Subcommittee and further, to recommend the draft to the 2006
Session of the General Assembly. The Council decided not to
go forward with a fifth response at this time, but agreed
to revisit the issued raised by the draft as part of its work
PPEA/PPTA Subcommittee reported that it had met five times
to develop a consensus draft relating to public access to
procurement records under both the PPEA and the PPTA. In seeking
to reach consensus, the Subcommittee attempted to balance
the competing public policies of open access to public records
and the need to keep trade secrets, private financial data
and other proprietary information confidential in order to
protect the interests of the parties involved in competitive
procurement transactions. The Subcommittee acknowledged and
thanked representatives from state and local government, private
contractors, the Virginia School Board Association, the Virginia
Municipal League, the Virginia Association of Counties, the
Virginia Press Association, and the Virginia Coalition for
Open Government for their participation and assistance in
the work of the Subcommittee. The Subcommittee reported that
consensus had been reached on a draft bill at the Subcommittee's
final meeting held December 9, 2005. One of the primary concerns
with the current PPEA/PPTA exemption was that too much information
was being withheld unnecessarily. The Subcommittee had received
comments that under the existing law, too often a private
entity would designate an entire proposal as "proprietary
information" and public bodies would acquiesce to this
designation. When this happens, the public remains uninformed
as to the essential details of the transaction. The consensus
draft attempts to correct this problem, while still protecting
certain records of a private entity that should remain confidential.
A summary of the consensus draft appears below. The Subcommittee
recommended the draft to the Council for approval.
of Legislative Proposals
The draft essentially rewrites the current FOIA exemption
for PPEA/PPTA records to clarify which records are exempted
and which records must be publicly accessible. Records containing
trade secrets and private financial data will continue to
be protected throughout the procurement process and after
award of an interim or comprehensive agreement, as this information
remains proprietary to the private entity and is not generally
available to the public. However, other procurement records
exist that could compromise the financial interest or bargaining
position of either party during the competitive procurement
process, but not after an agreement is reached. These records
would be protected from disclosure during negotiations, but
released after the execution of an interim or comprehensive
agreement. The draft legislation also formalizes the designation
process for the protection of trade secrets, financial records,
and other records submitted by a private entity by requiring
a written request for an exclusion from disclosure by the
private entity and for a written determination by the responsible
public entity that such records will be protected from disclosure
under certain circumstances.
the draft requires public bodies to post conceptual proposals
that it accepts (both solicited and unsolicited proposals),
and to make at least one copy of the proposals available for
public inspection. The draft sets forth different posting
requirements for state and local public bodies in recognition
of logistic differences between them. State level public bodies
must post the conceptual proposals on eVA (the Department
of General Service's web-based electronic procurement program).
Local public bodies must post a summary of the proposals and
notice of where copies may be inspected on the responsible
public entity's website or by publication in a newspaper of
general circulation in the area in which the contract is to
be performed. Local public bodies may also post on eVA if
they so choose. At their discretion, both state and local
public bodies may post additional copies of the proposals
by other means in order to provide maximal public notice.
Before entering into an interim or comprehensive agreement,
a responsible public entity must provide 30 days for public
comment. Once the process of bargaining of all phases or aspects
of an interim or comprehensive agreement is complete, but
before an interim or a comprehensive agreement is entered
into, a responsible public entity must post the proposed agreement
in the same manner described above. Once an interim or comprehensive
agreement has been executed, all procurement records, excluding
trade secrets, financial information, and cost estimates,
are available to the public upon request.
Council requested any comments from the public, particularly
from anyone opposed to the draft as written. There were none.
The Council then voted unanimously to accept the draft with
one technical amendment and to recommend it to the 2006 Session
of the General Assembly.3
"fifth response" draft legislation
Council again reviewed its proposed legislation relating to
a mandated fifth response to FOIA requests--"the requested
records do not exist." A new draft was presented that
incorporated the prior draft prepared by staff as well as
alternative language that was proposed by Council member Craig
Fifer at the last Council meeting. In presenting the draft,
staff described its origin as a need for public bodies to
inform requesters when records do not exist or cannot be found.
Such a response is not required under the current FOIA, but
is a matter of courtesy. The Council has issued a formal advisory
opinion encouraging public bodies to so respond in order to
avoid confusion and frustration.4 The draft legislation is
meant to make such a response mandatory whenever requested
records cannot be provided because the public body does not
have them. The Council recognized at its last meeting that
mandating that public bodies affirmatively state that records
"do not exist" may create additional problems unnecessarily,
particularly because there are situations where the records
may exist, but the public body that received the request does
not have them or cannot locate them. Staff indicated that
the draft as presented sought to account for these various
situations and minimize any unintended consequences.
the additional responses required by the draft bill are for
instances where (i) the requested records cannot be provided
because the public body is not the custodian of the requested
records, or such records cannot be found after diligent search
or (ii) the public body receiving the request is not subject
to FOIA. In the first instance, the public body is required
to certify that (i) it is not the custodian of the records
and is not in possession of the records or (ii) the requested
records cannot be found after diligent search. In the second
instance, the public body is required to cite the applicable
Code section that exempts it from FOIA. All public bodies
thus would be required to make some response to a request
for records, even if the public body is not otherwise subject
to FOIA. The bill also allows a public body to petition a
court for more time if the request would involve an extraordinarily
lengthy search for records, which such search would prevent
the public body from meeting its operational responsibilities.
Fifer expressed concern over the use of the term "custodian"
in FOIA and in the draft. That concern was shared by other
members of the Council. "Custodian" is not separately
defined in FOIA, and it is not always clear who is the "custodian"
of records for FOIA purposes, particularly at the local government
level. It was observed that "custodian" is defined
in the Virginia Public Records Act (VPRA), but the different
purposes of FOIA (public access) and the VPRA (record retention
and archiving) may prevent an equivalent usage of the same
term. Craig Merritt, representing the Virginia Press Association
(VPA), observed that the definition of "public record"
in FOIA implies that a custodian is one who has possession,
custody, or control over public records. Mr. Yelich stated
that, based upon his experience as the Librarian of Virginia
and with the VPRA, a public body might have custody over records
without being the "custodian" of those records.
It was suggested that the term "custodian" be removed
from the draft to avoid future problems regarding its definition.
Additional concern with the draft was expressed over imposing
a requirement on public bodies to "certify" that
the requested records do not exist or could not be found.
Currently, no public body is required to certify as part of
any of the mandated responses to a FOIA request. It was moved
and agreed to without objection to change the term "certify"
to "state" in order to avoid unnecessary confusion
over what the requirements of certification might be. Other
Council members expressed discomfort with requiring public
bodies that are not subject to FOIA to make a response to
a request for records. Mr. Hopkins also suggested that at
this time, the Council might want to simply add a response
allowing public bodies to indicate that the requested records
could not be found after a diligent search, rather than undertaking
the greater number of changes expressed in the proposed draft.
of the various concerns expressed, Senator Houck indicated
that he felt the draft was not yet ready to be recommended
to the General Assembly. Other Council members and Mr. Merritt
on behalf of the VPA concurred with Senator Houck's remarks.
The Council voted 8-2 to table the draft for the time being,
but to study the matter in 2006.5
Council's 2005 annual report has been published as House Document
No. 105. In reviewing the work of the Council as described
in the annual report, Senator Houck thanked the other Council
members, staff, and all of those who participated in the work
of the Council during 2005. Senator Houck emphasized the importance
of the educational mission of the Council in providing formal
and informal opinions and providing training to citizens and
next meeting of the Council has been tentatively set for March
2006. Meeting dates will be announced when available.
R. Edward Houck, Chair
Maria J.K. Everett, Executive Director
Council members in attendance were Senator Houck, E.M. Miller,
Bill Axselle, J. Stewart Bryan, John Edwards, Craig T. Fifer,
W. Wat Hopkins, Mary Yancey Spencer, and Nolan Yelich. Council
members Thomas Moncure and Roger Wiley were absent.
2 The Public-Private Education Facilities and Infrastructure
Act of 2002/Public-Private Transportation Act of 1995.
3 All Council members present voted "Aye"
by voice vote; there were no "Nays."
Freedom of Information Advisory Opinion 16 (2004).
Mr. Fifer and Mr. Hopkins voted against the motion to table
the draft legislation; all other Council members present voted
in favor of deferring this draft legislation for further consideration