FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
August 9, 2006, Richmond
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.
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.
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
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.
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.
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.
Bill Axselle, Chair, Senator Houck, John Edwards, and Roger
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.
Virginia Department of Transportation.