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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-08-18
August, 2018
Timothy
R. Johnson
Berryville, Virginia
The
staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing
staff advisory opinion is based solely upon the information
presented in your electronic mail messages dated February
15, 2018.
Dear
Mr. Johnson:
You have asked for a formal advisory opinion regarding
whether the Virginia Department of Agriculture and
Consumer Services (VDACS) properly withheld records
concerning an agriculture development project located
in Clarke County pursuant to various exemptions of
the Freedom of Information Act (FOIA). As background,
you provided the original letter to VDACS requesting
the documents and the response received from VDACS,
as well as details regarding your own familiarity
with documents received by other public bodies and
your thoughts on the use of the exemptions.
Questions Presented
Whether VDACS violated FOIA when it elected to withhold
records concerning grants related to an agriculture
development project located in Clarke County pursuant
to subdivision 3 of § 2.2-3705.6 and subdivision
2 of § 2.2-3705.7.
Factual Background
On January 9, 2018, your client sent a request for
records pursuant to FOIA to VDACS. In that request,
he asked for "[a]ny and all records . . . between
the VDACS, any employees, representatives or agents
of VDACS and the following individuals and/or entities
and their agents, officers, subsidiaries, successor,
surrogates or representatives." He then went
on to list various entities and organizations, including
various departments of the Clarke County government.
VDACS provided a written response dated January 29,
2018, stating that the records requested were exempt
from disclosure under FOIA and that they would not
be released.
VDACS listed three separate groups of records that
were being withheld in their entirety and provided
a corresponding exemption in FOIA. The first category
was described as the project file for an Agriculture
and Forestry Industries Development (AFID) project
with Clarke County. VDACS cited subdivision 3 of §
2.2-3705.6 as the exemption used to withhold the records
and stated that disclosure of the records contained
in the AFID project file would adversely affect the
financial interest of the Commonwealth of Virginia,
including its localities, by revealing information
from or regarding a potential AFID client or project.
The second category was records pertaining to monthly
AFID Fund reports and weekly AFID project pipeline
reports requested by the Secretary of Agriculture
and Forestry. The third category was records pertaining
to the Weekly Report requested by the Secretary of
Agriculture and Forestry. VDACS cited subdivision
2 of § 2.2-3705.7 as the exemption used to withhold
records in the latter two categories.
You
also stated that similar requests were made to Clarke
County and the Virginia Economic Development Partnership.
Both of those public bodies responded to the request
with over 600 pages of relevant communications, with
some portions of the records redacted. You stated
that after reviewing documents you found no evidence
of a promise of confidentiality, no indication that
any other business beneficiary is actually or prospectively
competing with the current business beneficiary, and
no indication that bargaining was involved. Furthermore,
you stated that generally no competition or bargaining
occurs in relation to AFID grant projects.
Applicable Law and Discussion
Subdivision 3 of § 2.2-3705.6
Your first question is whether VDACS as a public body
can withhold the specified records pursuant to subdivision
3 of § 2.2-3705.6.1 The exemption allows public
bodies to withhold two types of records. The first
relates to proprietary information provided by a private
business to a public body. In order to qualify for
this portion of the exemption, the records must contain
(1) proprietary information that was (2) voluntarily
provided by private business, (3) pursuant to a promise
of confidentiality from a public body, and (4) used
by the public body for business, trade, and tourism
development or retention. The second portion of the
exemption allows a public body to withhold (a) memoranda,
working papers, or other information (b) related to
businesses that are considering locating or expanding
in Virginia, (c) prepared by a public body, (d) where
competition or bargaining is involved and (e) where
disclosure of such information would adversely affect
the financial interest of the public body. For either
of these types of records, each element must be present
in order for a public body to withhold records pursuant
to the exemption.
First, let us look at the portion of the exemption
relating to proprietary information. On the basis
of the information you provided, we assume that you
do not dispute that the records contain proprietary
information, voluntarily provided by a private business,
that is to be used by the public body for business,
trade, and tourism development or retention. Your
contention is that the records requested contained
no promise of confidentiality pursuant to the third
requirement of this portion of the exemption. You
stated that you reviewed over 600 documents received
from other public bodies and that no formal agreement
was ever provided or assurance given that the information
would be maintained as confidential. Furthermore,
you asserted that no emails from VDACS that you reviewed
contained a "confidentiality clause." You
also allege that the records should be redacted in
a way that provides proof of the promise of confidentiality.
It is true that if there was no promise of confidentiality,
this portion of the exemption would not apply. FOIA
is silent, however, on the particular format of such
a promise. While it is best practice for a public
body to record such a promise, there is no requirement
in FOIA that the promise be in writing or that each
communication contain a confidentiality clause. A
one-time verbal promise from a representative of the
public body would therefore be sufficient. In such
a case, there may be no record of the promise for
the public body to provide if it is not written or
recorded.2 Under the given facts, it is unclear if
that is the case, but if there was some form of promise
given, VDACS would have met this requirement of the
exemption to withhold the specified records. If there
were a promise in writing, it would be subject to
disclosure as a public record assuming there was no
other exemption for withholding it, as it would likely
not be considered proprietary information and subject
to this exemption.3 Additionally, the exemption is
subject to the redaction requirements § of 2.2-3704.01,
which means that any information not subject to an
exclusion would need to be provided by the public
body.
Now,
we must look at the second portion of the exemption
as it relates to memoranda, working papers, or other
information. On the basis of the information you provided,
you are not contesting the first three elements of
this portion of the exemption.4 Instead, you assert
that there is no competition or bargaining involved
in the AFID process and that the financial interest
of the public body (VDACS) is not affected. If either
one of those assertions were true, then VDACS could
not withhold the records pursuant to this portion
of the exemption.
AFID provides either grants or loans to political
subdivisions in order to attract new and expanding
agriculture and forestry processing/value-added facilities
using Virginia-grown products.5 The posted guidelines
for the program state that the grants are discretionary
and are based on numerous factors.6 You stated that
there was no evidence in the documents you reviewed
that another entity was competing for the grants.
The fact that the program is discretionary and involves
a ranking system suggests that a certain level of
competition occurs in the process, even if multiple
entities are not pursuing a grant in the same location
at the same time. The AFID guidelines state that "ranking
criteria" are used to determine what entity receives
a grant award as well as the amount.7 Some examples
of ranking criteria include: the percentage of Virginia-grown
agricultural and forestry products used in a project,
anticipated additional state tax revenue, a return
on investment analysis, the number of jobs created,
as well as the projected impact on agricultural and
forestal producers. 8The process, as described in the
AFID guidelines, therefore appears to involve competition
throughout in the determination of which projects
are selected and how funds are allocated. Additionally,
note that the exemption requires either competition
or bargaining. It also seems possible that the process
described above allows the opportunity for an entity
to bargain for better funding through these various
criteria and the discretionary allocation of funds.
We finally turn to whether disclosure of the information
would adversely affect the financial interest of the
public body, which in this case is VDACS. The General
Assembly created the fund to be used by the Governor
to attract new and expanding agriculture and forestry
processing/value-added facilities using Virginia-grown
products.9 VDACS is to provide consultation with the
Secretary of Agriculture and Forestry to assist the
Governor in developing guidelines and criteria used
in awarding grants through the fund.10 Additionally,
there are numerous powers granted to VDACS in the
Code of Virginia, including advising the Governor
on promoting the development of the agricultural industry,
encouraging development of the industry, formulating
plans for developing new markets for the Commonwealth's
farm products, and numerous others.11 Looking at the
powers and duties of VDACS alone therefore shows that
the financial interest of VDACS is inextricably linked
to the promotion and development of the Commonwealth's
agricultural industry.
In
the response to your client's FOIA request, VDACS
stated that disclosing the information would adversely
affect the financial interest of the Commonwealth
of Virginia, including its localities, by revealing
information from or regarding a potential AFID client
or project. As stated above, one of the determining
factors in awarding grants is the anticipated additional
state tax revenue expected to accrue to the state
as a result of the capital investment and jobs created.
As a state agency, VDACS would also have a financial
interest in the broader effects of bringing more jobs
to the Commonwealth on the state and state agencies.
Because of this and the powers and duties given to
VDACS, as well as the purpose of the AFID program,
it would appear that the information requested could
in fact adversely affect the financial interests of
VDACS, and withholding of the records would therefore
be allowed.12
If
either use of the exemption is challenged, the public
body would have the burden by a preponderance of the
evidence to establish the exemption before a court
of law in accordance with subsection E of § 2.2-3713.
Additionally, you are correct that if the records
contain both information subject to an exclusion and
information that must be released, the public body
has a duty to withhold only those portions of the
record subject to an exclusion pursuant to §
2.2-3704.01.
Subdivision 2 of § 2.2-3705.7
Your second and third questions are whether it was
appropriate for VDACS to withhold certain records
pursuant to subdivision 2 of § 2.2-3705.7. That
subdivision allows a public body to withhold "[w]orking
papers and correspondence of the Office of the Governor."
"Office of the Governor" is defined in that
section to include Cabinet Secretaries. Furthermore,
"working papers" is defined as "those
records prepared by or for a public official identified
in this subdivision for his personal or deliberative
use."
This
office has previously analyzed the working papers
exclusion and has concluded that one should consider
the following three factors when analyzing application
of the exemption:
1. The purpose for which the record was created;
2. The person for whom the record was created;
3. Whether the official who holds the exemption
has disclosed the record to others and, if so, whether
that disclosure was (i) necessary or desirable to
further the official's own deliberative process
or (ii) dissemination beyond the personal or deliberative
use of the official who holds the exemption.13
We
must now apply this analysis to the given facts. The
two categories of records that were withheld pursuant
to this exemption were records pertaining to monthly
AFID Fund reports and weekly AFID project pipeline
reports requested by the Secretary of Agriculture
and Forestry. By wording the descriptions of both
sets of records as "reports requested by the
Secretary of Agriculture and Forestry" and utilizing
this particular exemption, it would appear that the
records were created for the Secretary of Agriculture
and Forestry (Cabinet Secretary) for his personal
or deliberative use at his request. Additionally,
there is nothing in the given facts indicating otherwise,
and there is also nothing in the given facts indicating
that those specific records were further disseminated
beyond the Secretary's personal or deliberative use.
You
are correct in surmising that if the records were
not created for the Secretary of Agriculture and Forestry
for his personal or deliberative use, then the exemption
would not apply. For example, if the records are generated
for use in VDACS and can be requested or used by other
organizations, then this exemption would not apply.
While the wording used by VDACS to explain the types
of records could potentially be confusing, it appears
that they have complied with the requirements for
a response under FOIA under the given facts.14 In this
instance as well, we do not have the withheld records
before us. If a factual dispute about the content
or purpose of the records exists, a court of law is
the appropriate place to make any necessary determinations
of fact. The public body would have the burden by
a preponderance of the evidence to establish the exemption
in accordance with subsection E of § 2.2-3713.
Conclusion
Under the first portion of subdivision 3 of §
2.2-3705.6, there must be a promise of confidentiality
from a public body to a private business providing
proprietary information in order for the public body
to withhold records pursuant to the exemption. Although
it is best practice for a public body to record such
a promise of confidentiality, FOIA does not require
that the promise be in a specific format, and it could
therefore be a verbal promise. Under the second portion
of the same subdivision pertaining to memoranda, working
papers, or other information prepared by a public
body, there must be competition or bargaining involved,
and disclosure of the information must also adversely
affect the financial interest of the public body.
The process of awarding AFID grants appears to contain
elements of competition, as various factors are examined
in awarding the discretionary grants and amounts.
Additionally, VDACS appears to have a financial interest
as a state agency in bringing new jobs and tax revenues
to the state, which the AFID was created to help do.
Furthermore, the enumerated powers and duties of VDACS
include promoting the development of the agricultural
industry and markets. It therefore appears that the
information requested could in fact adversely affect
the financial interest of VDACS and that withholding
of the records would be proper.
Under subdivision 2 of § 2.2-3705.7, a public
body may withhold records that are prepared for the
personal or deliberative use of an official who holds
the exemption, including a Cabinet Secretary, which
appears to be the case in the given facts. If the
records were not prepared for that purpose or were
further disclosed in a manner that was not necessary
to further the personal and deliberative use of the
particular official, then the exemption would not
apply. There is no information in the given facts
that indicates that further disclosure occurred.
Both
sections are subject to redaction in accordance with
§ 2.2-3704.01. Therefore, if records contain
both information subject to an exclusion and information
that must be released, the public body has a duty
to withhold only those portions of the record subject
to an exclusion. Additionally, since we do not have
the records before us, if there is a factual dispute
regarding the records or creation of the records,
a court of law would be the appropriate place to make
any necessary determinations of fact. If challenged,
a public body bears the burden of proof by a preponderance
of the evidence to establish the exemption in accordance
with subsection E of § 2.2-3713.
Thank you for contacting this office. We hope that
we have been of assistance.
Sincerely,
Chad
M. Ayers
Attorney
Alan
Gernhardt
Executive Director
1As
a state agency, VDACS is clearly a public body pursuant
to § 2.2-3701, and there appears to be no dispute
that the records in question are public records pursuant
to § 2.2-3701.
2See § 2.2-3701 (defining
"public record").
3Id.
4On the basis of the information you provided,
it appears that the records in question are memoranda,
working papers, or other information related to businesses
that are considering locating or expanding in Virginia,
prepared by VDACS.
5Governor's
Agriculture and Forestry Industries Development Fund
Guidelines 1 www.vdacs.virginia.gov/pdf/afid-guidelines.pdf
(last visited August 6, 2018).
6Id.
7Id. at 1 and 13.
8Id.
at 5.
9§
3.2-304.
10§
3.2-305.
11See §§ 3.2-102 (detailing
the general powers and duties of the Commission of
Agriculture and Consumer Services) and 3.2-111 (detailing
the general powers and duties of the Board of Agriculture
and Consumer Services).
12See Freedom of Information Advisory
Opinion 01 (2014) (examining a similar records request
to the Virginia Economic Development Partnership and
denial of the request pursuant to subdivision 3 of
§ 2.2-3705.6).
13Freedom of Information Advisory Opinions
01 (2016) and 02 (2015).
14 See
§ 2.2-3704 (outlining the requirements for a
public body's response to a FOIA request for public
records). |