VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

August 9, 2006, Richmond

The PPEA/PPTA Subcommittee met on August 9, 2006 to discuss SB 5011 passed by during the 2006 Special Session I of the General Assembly. All members of the Subcommittee were present.¹ The meeting began with staff providing an overview of SB 5011, which added a FOIA exemption for memoranda, staff evaluations or other records generated by or for the responsible public entity for the evaluation and negotiation of PPEA and PPTA proposals.² SB 5011 also allows procurement records under the PPTA to be withheld even after a comprehensive agreement has been entered into, if the process of bargaining or other interim agreements related to the qualifying transportation facility or all phases or aspects of the comprehensive agreement is not complete. Finally, SB 5011 authorizes a responsible public body and any independent review panel appointed to review information and advise the public body to meet in a closed meeting to discuss or consider the records exempted from disclosure. Staff advised that SB 5011 contained a sunset date of July 1, 2007 to allow the FOIA Council an opportunity to review the changes and to make any permanent recommendations.

Chairman Bill Axselle stated that because of the previous, extensive work of the PPEA/PPTA Subcommittee in 2005 and its ensuing legislative amendments that were unanimously adopted by the FOIA Council and both house of the General Assembly, the burden was on VDOT³ to offer a permanent solution. He stated that it was not necessary to rehash the issues, but to focus attention on a permanent solution.

Rick Walton on behalf of VDOT indicated that the substantive provisions of SB 5011 be retained, with elimination of the sunset provision of July 1, 2007. He stated that the closed meeting exemption for the independent review panel for PPTA projects would be better placed in FOIA rather than in the PPTA. He referred to the FOIA Council's 2005 Annual Report and noted that concerns raised in 2005 were specifically with PPEA projects and not the PPTA process. He noted that VDOT currently posts all conceptual proposals. Mr. Walton indicated that because VDOT projects are "mega projects" and not funded all at one time, they take years to negotiate and to complete. VDOT wants the ability to protect its records until all bargaining is done; not so much to keep it from the public, but to limit access by the company with whom VDOT is negotiating. He used projects such as Route 58, hot lanes on Interstates 95, 395, and 495 as examples of the intricacies and complexity of mega projects. For instance, the hot lanes project involves 57 miles of highway, the first part of which is feasibility studies, traffic and revenue studies that dictate how the project will be built. He noted that under SB 5011, in order for records generated by VDOT to be protected from disclosure, VDOT must be make a written determination that release prior to entering into a comprehensive agreement would have an adverse impact on the financial interest or bargaining position. When questioned how the release of records relating to the preliminary phase(s) of a project could adversely impact later phases of the project, Mr. Walton indicated that VDOT's financial analysis (i.e., rates of return, toll rates, etc.) carries over and impacts all phases of a project. Another issue discussed was how anyone is given the opportunity to build a "better mousetrap" if, as a proposer whose proposal has not been accepted, you do not have access to the records. Clearly the first proposer (in an unsolicited proposal) has the advantage and the system is loaded to favor him. Senator Houck stated that with the prediction of 15 years or more for the completion of the Route 58 project, no one would know anything about the project until its completion. It was pointed out that with a mega project with a 20 plus year completion date, the records of the proposers who were not selected likewise do not become open until the project is completed; again giving all advantage to the selected proposer.

There was discussion among the Subcommittee about removing the sunset provision of July 1, 2007. Several of the Subcomittee members objected to its removal stating that part of any procurement process is to ensure a level playing field and that the idea that proposer A has a built-in advantage and nobody else has an opportunity to participate any further doesn't provide equal opportunity to all qualified vendors to have access to public business.

Ginger Stanley, Virginia Press Association (VPA), asked Mr. Walton if it were possible to identify the specific types of records VDOT believes should be withheld as a starting place for compromise. Mr. Walton answered in the negative, stating that each project was different. The VPA offered amendments to the FOIA exemption.

The subcommittee directed staff to prepare two drafts--one reflecting the VPA amendments, and one removing the sunset and relocating the closed meeting exemption for VDOT's independent review panels to FOIA. In so doing, the Subcommittee could compare the substantive provisions more easily. Both drafts will be posted to the FOIA Council's website. The next meeting of the PPEA/PPTA subcomittee is scheduled for Wednesday, August 23, 2006 at 10:00 a.m.

¹ Bill Axselle, Chair, Senator Houck, John Edwards, and Roger Wiley.
² Public-Private Transportation Act of 1995 (§ 56-556 et seq.) and the Public Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.), respectively.
³ Virginia Department of Transportation.