VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

August 23, 2006, Richmond

The 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.

Chairman 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.

The 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 complete.

Council 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.

Chairman 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.

The 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.

¹ 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.
² Messrs. Axselle, Edwards, and Wiley were present. Senator Houck was absent due to illness.