FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
June 8, 2005, Richmond
(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.
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
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.
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.
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.
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.
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.
All subcommittee members were present (Mssrs. Axselle, Edwards,