VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

June 8, 2005, Richmond

The PPEA (Public Private Education Facilities and Infrastructure Act) Subcommittee¹ met on June 8, 2005 to discuss the current FOIA records exemption found at § 2.2-3705.6 (11). This subcommittee was created as a result of HB 2672 (Delegate Plum), which was referred to the FOIA Council for study by the 2005 General Assembly. The reason for referral to the FOIA Council and hence the creation of a subcommittee was not so much a problem with the bill itself, but concern about how the current record exemption for PPEA and PPTA proposals was used to withhold more records than are authorized under the exemption. This concern was also shared by the Virginia Coalition for Open Government and the Associated General Contractors of Virginia.

It was brought to the subcommittee's attention that there were four localities where problems existed concerning excessive secrecy concerning PPEA projects, including the Counties of Bedford, Clark, Stafford, and Chesterfield. Most of these controversies revolved around the friction between school boards, which are responsible for building new schools, and the local governing bodies, which approve the funding for school construction. It was noted that more transparency from the start of PPEA projects is needed and especially at the local government level.

Part of the perception of secrecy stems from the lack of criteria by which to distinguish truly confidential proprietary information from other types of information. Businesses all too often earmark all documents submitted to government as proprietary and thus thwart disclosure of the procurement process. It was suggested that confidential proprietary information needs to be defined to protect that information which is truly confidential and is protected for all purposes and at all times (i.e., proprietary records that need to be protected notwithstanding the procurement process) versus that which the business would prefer not to have released, but which are related to the transaction. It was suggested that the latter should become open when an agreement is entered into. Additionally, it was suggested that the exemption should specify the time when certain records of the transaction are to be made available. Answering the question what can be withheld during the process, it was suggested that when a public entity has all of the proposals, the deadlines for submission are over, and the public entity begins its review of the proposals, vendors have less need to be protected and therefore records of the proposals should be made available. Further discussion, however, is needed on what should be open at the end of the process, but before the contract is awarded.

From the private sector perspective, Mr. Axselle noted that there is some suspicion by the private sector that a public body has already made its decision before receiving all proposals. The losing contractor does not make a request for the records because they feel it is viewed as antagonistic by the public entity and the contractors want to maintain a good relationship with the public body for future procurement opportunities.
Under the PPEA, procurements records are required to be released once a comprehensive agreement has been entered into. This is consistent with the Virginia Public Procurement Act (VPPA) which provides public access to procurement records once a contract is awarded. Under the VPPA, bidders have an earlier right of inspection to ensure the fairness of the process. However, the PPEA does not contain a similar provision. In 2005, the PPEA was amended to authorize the award of interim agreements. In light of this amendment, the subcommittee decided that this issue should be considered as part of its work. The subcommittee felt that if the agreement is binding on the parties, it should be available to the public. The nature of interim agreements was discussed. Many interim agreements are the staging agreements for the entire project and may include separate agreements for preliminary engineering studies, environmental work, design of the project, and finally, construction of the project. Interim agreements are used to avoid unnecessary delay on a project.

As a result of its discussions, the subcommittee by consensus agreed to examine the following issues:

" The need to define "confidential proprietary records."
" The need for an affirmative declaration and/or agreement by a public entity that certain records will be considered proprietary and thus protected from disclosure.
" The need to articulate specific time lines for release of records related to PPEA projects.
" Interim versus comprehensive agreements, and when records related to each must be made available.
" Disclosure by school boards to the local governing bodies responsible for approving funding for school construction.

Concern was raised that with the expenditure of public dollars for PPEA projects, the public knows only at the end of the process. In question was whether it was the intent of the law to let the public know only after the agreement. Staff noted that in both the PPEA and the VPPA, the public right of inspection of procurement records occurs only after the contract has been awarded. Staff noted however that both Acts require public notice at the beginning of the process of the nature of the work to be undertaken.

The subcommittee stated that the balance necessary for development of good public policy is to facilitate competition while at the same time ensuring the public confidence in the decisions of government, especially when expending substantial public funds. The subcommittee agreed that it needed to hear from the private sector as it continues its deliberations. Staff will develop an issue matrix to array the issues outlined above to frame the issues and facilitate discussion. It is anticipated that the issue matrix will be available by the end of June, circulated to the interested parties, and posted to the FOIA Council website. No date has been set for the next subcommittee meeting. The subcommittee encourages any individual or group, state and local officials, and others interested in the work of the subcommittee to submit comment and participate in subcommittee meetings.

¹ All subcommittee members were present (Mssrs. Axselle, Edwards, and Hallock).