FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
August 23, 2006, Richmond
PPEA1 Subcommittee held its second meeting on August 23, 2006.2
After a recap of SB 76 (06 Regular Session) and SB 5011(06
Special Session), the subcommittee reviewed two drafts prepared
by staff. The first draft reflected discussions by the subcommittee
at its August 9, 2006 meeting, including making permanent
the substance of the FOIA exemption given in SB 5011 and allowing
an independent review panel appointed to review PPTA proposals
to meet in a closed meeting. The second draft incorporated
amendments offered by the Virginia Press Association (VPA).
A representative of the VPA testified that VPA conceded on
the closed meeting exemption and the FOIA exemption for records
prepared by a public body to evaluate or negotiate proposals
submitted under either the PPTA or the PPEA; but was unwilling
to agree to the withholding of all PPTA records until any
and all phases of the project were complete. VPA indicated
that it had repeatedly requested VDOT to specify the type
of records it wanted protected with regard to its "mega-projects"
such as hot lanes on Interstate 495 and the Route 58 project,
but that no response had been made. A representative of the
Virginia Coalition for Open Government (VCOG) noted that keeping
all PPTA procurement records closed until all phases of bargaining
are complete would essentially keep the public in the dark
for 10 or more years about how public money was being spent.
He reminded the subcommittee that at the first meeting, the
subcommittee chair indicated that the burden was on VDOT to
come up with a permanent solution. He opined that the burden
has not been met.
Axselle indicated that the policy call for the subcommittee
was on the issue of whether it was in the public interest
that all PPTA procurement records be open to the public only
after the contract is signed and all phases have been negotiated.
He noted that essentially the VDOT position was that such
records become open at the completion of a project, some 10
or more years in the future.
VDOT representative indicated that VDOT had carefully outlined
its position and there reasons therefore in detail at the
prior meeting. He stated that SB 5011 mirrors preexisting
(before July 1, 2006) authorization under the PPTA. He explained
that there is ample opportunity for public involvement, citing
the six-year plan hearings, the fact that environment impact
statements are subject to public hearings and are posted as
required by federal highway guidelines, and that the meetings
of the independent review panel are open. He noted that when
a contract is executed, it is posted on the VDOT website.
He stated that the process of disclosure of PPTA projects
has evolved since the law's enactment 1995 and the process
now includes more public access. In closing, he indicated
that documents related to risk allocation, toll rates, and
rates of return should be protected until all bargaining is
member Roger Wiley commented that the Charlottesville By-Pass
was added to the six-year plan in 1973 and remains on the
plan. He asked what specific records on a 15-year project
needed to be withheld. He indicated that with identifying
specific types of records prepared for VDOT, a narrower exemption
might be crafted that would get the support of all of the
parties. VDOT's response was that it hard to see into the
future and correctly predict the types of records that would
be involved with a specific project. He did however, indicate
that records evaluating the financial viability of a company
or plan and allocation of risk records would be an example.
Axselle suggested that the draft limit the records prepared
by VDOT (and other public bodies with authority under the
PPTA and the PPEA) to those "exclusively" so prepared
to evaluate and negotiate proposals. There was discussion
that the language "prepared by or for a responsible public
entity" was too open ended and could arguably include
records submitted by a proposer involved in the negotiations.
The subcommittee directed staff to suggest language that would
make it clear that such records were not within the scope
of the exemption.
subcommittee agree by a 3 to 0 vote to adopt the draft identified
by staff as "version 1" incorporating the subcommittee
amendments--exclusively prepared and excluding records submitted
by a proposer involved in negotiations-- discussed immediately
above. As a result, the draft adopted by the subcommittee
to be recommended to the full FOIA Council, would: (i) provide
a FOIA exemption for records prepared by the responsible public
entity, its staff, outside advisors, or consultants exclusively
for the evaluation and negotiation of proposals filed under
the PPTA or PPEA, where if such records were made public after
the execution an interim or a comprehensive agreement, the
financial interest or bargaining position of the public entity
would be adversely affected; and (ii) adding a closed meeting
exemption in FOIA for any independent review panel appointed
to review information and advise the responsible public entity
concerning PPTA records. It is anticipated that no further
subcommittee meetings will be held.
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.
Messrs. Axselle, Edwards, and Wiley were present. Senator
Houck was absent due to illness.