The General Assembly enacted the Virginia Freedom of Information Act (“FOIA”) to ensure the public ready access to public records and public meetings wherein the “business of the people” is being conducted. FOIA does include certain exemptions which the public body may elect to exercise, keeping the proceedings or information confidential. Each of the exclusions is to be narrowly construed which may be a challenge to a private party proposing a project pursuant to the Virginia Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA), responding to a Request For Proposals (RFP) or an unsolicited bid. It is important to review the confidentiality provisions prior to submitting any information to a public body not intended for public consumption.
In a PPEA scenario, FOIA permits the governing body to exercise an exemption predominately for confidential proprietary information voluntarily submitted under a promise by the public body of confidentiality and/or memoranda, working papers or other records related to proposals if making public such records would adversely affect the financial interest of the public body or the private entity or the bargaining position of either party. Such exemptions include information deemed to be trade secrets or proprietary information submitted by the private party. Only provisions of the proposal that fall within such exemptions, which are to be narrowly construed, will remain confidential. The burden is on the private party making the proposal to invoke the exemption. FOIA requires the request for confidentiality to be made at the time the proposal is submitted. The private party must provide in writing the specific provisions of the proposal to remain confidential and the rationale why confidentiality is necessary. The private entity may request a determination regarding the extent of confidentiality that may be afforded a proposal prior to its submission.
In a RFP scenario, the governing body sets the parameters, which may include protection from public disclosure. In addition, FOIA does provide exemptions from disclosure to public inspection for certain components including information deemed to be trade secrets or proprietary information submitted by the private party. The public body may keep confidential, in its discretion, cost estimates relating to a proposed procurement transaction prepared by or for a public body. Generally, bid and proposal records are open to the public for inspection only after award of the contract. However, any competitive sealed bidding bidder, upon request, shall be afforded the opportunity to inspect bid records within a reasonable time after the opening of all bids but prior to award, except in the event that the public body decides not to accept any of the bids and to reopen the contract. Any competitive negotiation offeror, upon request, shall be afforded the opportunity to inspect proposal records within a reasonable time after the evaluation and negotiations of proposals are completed but prior to award, except in the event that the public body decides not to accept any of the proposals and to reopen the contract. If information is deemed confidential, the public body sets reasonable restrictions to ensure the integrity of the records remain intact.
In an unsolicited bid, the public body in its discretion may deem certain provisions of the bid confidential, upon the written request of the private party. There are a few strategies to use in such written request. There are certain FOIA exemptions depending on the proposal that may be claimed by the private party, such as the release of records adversely affecting the bargaining position or negotiating strategy of the public body.
PPEA, RFP and unsolicited bid scenarios may afford some confidentiality for the private party; however there are specific actions to be taken by the private party to ensure certain information remains confidential. While FOIA protects some information regardless of the type of project, there are strategies for expanding the protecting through agreement with the public body.