VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

December 29, 2005, Richmond

The Freedom of Information Advisory Council¹ (the Council) held its fifth and final meeting of 2005 in order to consider legislative proposals concerning (i) public access to procurement records under the PPEA and PPTA² and (ii) mandating additional responses to FOIA requests by public bodies. The Council received a progress report from its PPEA/PPTA Subcommittee and voted to adopt the legislative draft recommended by the PPEA/PPTA Subcommittee and further, to recommend the draft to the 2006 Session of the General Assembly. The Council decided not to go forward with a fifth response at this time, but agreed to revisit the issued raised by the draft as part of its work in 2006.

Subcommittee Report

The PPEA/PPTA Subcommittee reported that it had met five times to develop a consensus draft relating to public access to procurement records under both the PPEA and the PPTA. In seeking to reach consensus, the Subcommittee attempted to balance the competing public policies of open access to public records and the need to keep trade secrets, private financial data and other proprietary information confidential in order to protect the interests of the parties involved in competitive procurement transactions. The Subcommittee acknowledged and thanked representatives from state and local government, private contractors, the Virginia School Board Association, the Virginia Municipal League, the Virginia Association of Counties, the Virginia Press Association, and the Virginia Coalition for Open Government for their participation and assistance in the work of the Subcommittee. The Subcommittee reported that consensus had been reached on a draft bill at the Subcommittee's final meeting held December 9, 2005. One of the primary concerns with the current PPEA/PPTA exemption was that too much information was being withheld unnecessarily. The Subcommittee had received comments that under the existing law, too often a private entity would designate an entire proposal as "proprietary information" and public bodies would acquiesce to this designation. When this happens, the public remains uninformed as to the essential details of the transaction. The consensus draft attempts to correct this problem, while still protecting certain records of a private entity that should remain confidential. A summary of the consensus draft appears below. The Subcommittee recommended the draft to the Council for approval.

Summary of Legislative Proposals

1. PPEA/PPTA Draft

The draft essentially rewrites the current FOIA exemption for PPEA/PPTA records to clarify which records are exempted and which records must be publicly accessible. Records containing trade secrets and private financial data will continue to be protected throughout the procurement process and after award of an interim or comprehensive agreement, as this information remains proprietary to the private entity and is not generally available to the public. However, other procurement records exist that could compromise the financial interest or bargaining position of either party during the competitive procurement process, but not after an agreement is reached. These records would be protected from disclosure during negotiations, but released after the execution of an interim or comprehensive agreement. The draft legislation also formalizes the designation process for the protection of trade secrets, financial records, and other records submitted by a private entity by requiring a written request for an exclusion from disclosure by the private entity and for a written determination by the responsible public entity that such records will be protected from disclosure under certain circumstances.

Additionally, the draft requires public bodies to post conceptual proposals that it accepts (both solicited and unsolicited proposals), and to make at least one copy of the proposals available for public inspection. The draft sets forth different posting requirements for state and local public bodies in recognition of logistic differences between them. State level public bodies must post the conceptual proposals on eVA (the Department of General Service's web-based electronic procurement program). Local public bodies must post a summary of the proposals and notice of where copies may be inspected on the responsible public entity's website or by publication in a newspaper of general circulation in the area in which the contract is to be performed. Local public bodies may also post on eVA if they so choose. At their discretion, both state and local public bodies may post additional copies of the proposals by other means in order to provide maximal public notice. Before entering into an interim or comprehensive agreement, a responsible public entity must provide 30 days for public comment. Once the process of bargaining of all phases or aspects of an interim or comprehensive agreement is complete, but before an interim or a comprehensive agreement is entered into, a responsible public entity must post the proposed agreement in the same manner described above. Once an interim or comprehensive agreement has been executed, all procurement records, excluding trade secrets, financial information, and cost estimates, are available to the public upon request.

The Council requested any comments from the public, particularly from anyone opposed to the draft as written. There were none. The Council then voted unanimously to accept the draft with one technical amendment and to recommend it to the 2006 Session of the General Assembly.³

2. Proposed "fifth response" draft legislation

The Council again reviewed its proposed legislation relating to a mandated fifth response to FOIA requests--"the requested records do not exist." A new draft was presented that incorporated the prior draft prepared by staff as well as alternative language that was proposed by Council member Craig Fifer at the last Council meeting. In presenting the draft, staff described its origin as a need for public bodies to inform requesters when records do not exist or cannot be found. Such a response is not required under the current FOIA, but is a matter of courtesy. The Council has issued a formal advisory opinion encouraging public bodies to so respond in order to avoid confusion and frustration.⁴ The draft legislation is meant to make such a response mandatory whenever requested records cannot be provided because the public body does not have them. The Council recognized at its last meeting that mandating that public bodies affirmatively state that records "do not exist" may create additional problems unnecessarily, particularly because there are situations where the records may exist, but the public body that received the request does not have them or cannot locate them. Staff indicated that the draft as presented sought to account for these various situations and minimize any unintended consequences.

As presented, the additional responses required by the draft bill are for instances where (i) the requested records cannot be provided because the public body is not the custodian of the requested records, or such records cannot be found after diligent search or (ii) the public body receiving the request is not subject to FOIA. In the first instance, the public body is required to certify that (i) it is not the custodian of the records and is not in possession of the records or (ii) the requested records cannot be found after diligent search. In the second instance, the public body is required to cite the applicable Code section that exempts it from FOIA. All public bodies thus would be required to make some response to a request for records, even if the public body is not otherwise subject to FOIA. The bill also allows a public body to petition a court for more time if the request would involve an extraordinarily lengthy search for records, which such search would prevent the public body from meeting its operational responsibilities.

Mr. Fifer expressed concern over the use of the term "custodian" in FOIA and in the draft. That concern was shared by other members of the Council. "Custodian" is not separately defined in FOIA, and it is not always clear who is the "custodian" of records for FOIA purposes, particularly at the local government level. It was observed that "custodian" is defined in the Virginia Public Records Act (VPRA), but the different purposes of FOIA (public access) and the VPRA (record retention and archiving) may prevent an equivalent usage of the same term. Craig Merritt, representing the Virginia Press Association (VPA), observed that the definition of "public record" in FOIA implies that a custodian is one who has possession, custody, or control over public records. Mr. Yelich stated that, based upon his experience as the Librarian of Virginia and with the VPRA, a public body might have custody over records without being the "custodian" of those records. It was suggested that the term "custodian" be removed from the draft to avoid future problems regarding its definition.

Additional concern with the draft was expressed over imposing a requirement on public bodies to "certify" that the requested records do not exist or could not be found. Currently, no public body is required to certify as part of any of the mandated responses to a FOIA request. It was moved and agreed to without objection to change the term "certify" to "state" in order to avoid unnecessary confusion over what the requirements of certification might be. Other Council members expressed discomfort with requiring public bodies that are not subject to FOIA to make a response to a request for records. Mr. Hopkins also suggested that at this time, the Council might want to simply add a response allowing public bodies to indicate that the requested records could not be found after a diligent search, rather than undertaking the greater number of changes expressed in the proposed draft.

In light of the various concerns expressed, Senator Houck indicated that he felt the draft was not yet ready to be recommended to the General Assembly. Other Council members and Mr. Merritt on behalf of the VPA concurred with Senator Houck's remarks. The Council voted 8-2 to table the draft for the time being, but to study the matter in 2006.⁵

Of Note

The Council's 2005 annual report has been published as House Document No. 105. In reviewing the work of the Council as described in the annual report, Senator Houck thanked the other Council members, staff, and all of those who participated in the work of the Council during 2005. Senator Houck emphasized the importance of the educational mission of the Council in providing formal and informal opinions and providing training to citizens and government alike.

The next meeting of the Council has been tentatively set for March 2006. Meeting dates will be announced when available.

The Honorable R. Edward Houck, Chair
Maria J.K. Everett, Executive Director

¹ Council members in attendance were Senator Houck, E.M. Miller, Bill Axselle, J. Stewart Bryan, John Edwards, Craig T. Fifer, W. Wat Hopkins, Mary Yancey Spencer, and Nolan Yelich. Council members Thomas Moncure and Roger Wiley were absent.
² The Public-Private Education Facilities and Infrastructure Act of 2002/Public-Private Transportation Act of 1995.
³ All Council members present voted "Aye" by voice vote; there were no "Nays."
⁴ Freedom of Information Advisory Opinion 16 (2004).
⁵ Mr. Fifer and Mr. Hopkins voted against the motion to table the draft legislation; all other Council members present voted in favor of deferring this draft legislation for further consideration in 2006.