April 23, 2002

Leslie L. Lilley, City Attorney
City of Virginia Beach
Virginia Beach, VA

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 letter of March 8, 2002, and our discussions on March 29, and April 2, 2002.

Dear Mr. Lilley:

You have asked whether a public body may properly withhold records generated during contract negotiations under the Freedom of Information Act (FOIA). You advise that the records consist of drafts, documents and internal correspondence prepared by the public body for the purposes of negotiating with potential or current contractors and, if released, could adversely affect the public body's bargaining position. You state that these records reveal your negotiating strategy and supporting rationale for contract pricing, and other terms and conditions of the transaction. You indicate that the correspondence exchanged during the contract negotiations is typically between two public officials and does not include legal review. Finally, you state that while many of these contract negotiations are undertaken in accordance with the Virginia Public Procurement Act (§ 2.2-4300 et seq.), not all contracts negotiated by the public body are within the purview of that Act.¹

Section 2.2-3701 of the Code of Virginia defines public records as all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. This office has previously opined that draft copies of public records are included within the definition of public records.²

Subsection A of § 2.2-3704 expressly provides that, [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Therefore, unless one of the 77 record exemptions listed in subsection A of § 2.2-3705 or a specific statutory provision elsewhere in the Code exempts the record, it is subject to the mandatory disclosure requirements of FOIA. Generally, under FOIA, with the exception of scholastic,³ personnel⁴ and medical⁵ records, exemptions are not broadly written (i.e., they do not apply to all public bodies), rather they are specific to a named agency of government for named records of that agency. For example, subdivision A. 33. specifically exempts [p]ersonal information filed with the Virginia Housing Department Authority concerning individuals who have applied for or received loans or other housing assistance..., and subsection A. 66. exempts [d]ocuments and other information of a proprietary nature furnished by a supplier of charitable gaming supplies to the Charitable Gaming Commission...

With respect to records prepared for contract negotiations, FOIA does not contain a general exemption relating to such records. FOIA does, however, contain a number of related exemptions, again for specifically named agencies. Examples of these exemptions can be found in subdivision A. 17. of § 2.2-3705, which allows the Department of Transportation to exempt contract cost estimates prepared for [its] confidential use, and subdivision A. 60. of § 2.2-3705, which provides a parallel exemption for Virginia Commonwealth University. However, as noted above, there is no applicable FOIA records exemption for political subdivisions of the Commonwealth generally or the City of Virginia Beach in particular.

Exemptions to the release of records can also be found elsewhere in the Code. The Virginia Public Procurement Act (VPPA), which governs the procurement transactions of public bodies, states at § 2.2-4342 that, [e]xcept as provided in this section, all proceedings, records, contracts and other public records relating to procurement transactions shall be open to the inspection of any citizen, or any interested person, firm or corporation, in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). Subsection D of the same section provides that [a]ny 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. Otherwise, proposal records shall be open to public inspection only after award of the contract. While the disclosure of certain procurement records is limited by the VPPA, it does not exempt records created by a public body related to the negotiation of contract terms and conditions. Accordingly, these records must be disclosed, if requested.

While disclosure of the records you describe is likely to impact the bargaining position of the City, FOIA requires disclosure absent an exemption. The rules of statutory construction mandate that we examine the language of § 2.2-3700 in its entirety and determine the intent of the General Assembly from the words contained in the statute.⁶ When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that language.⁷ Here again, FOIA ensures citizen access to records in the custody of public officials and presumes public records are open unless there is an exemption.⁸ The exemptions must be narrowly construed as required by FOIA. Despite the potential adverse effect on the public body's bargaining position, FOIA's mandatory disclosure requirements imposed upon these contract negotiation records must prevail. This office is tasked with opining on the requirements of the current law, not what the law should be. Perhaps this is an issue that should be addressed by the General Assembly.

In conclusion, FOIA neither provides a general exemption for records generated during contract negotiations or a specific exemption for the City of Virginia Beach, nor does an exemption for such records exist elsewhere in the Code. Without an exemption, the record must be disclosed.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1. § 2.2-4343

2. Virginia Freedom of Information Advisory Opinion 3 (2000).

3. Subdivision A. 3. of § 2.2-3705.

4. Subdivision A. 4. of § 2.2-3705.

5. Subdivision A. 5. of § 2.2-3705.

6. Cummings v. Fulghum, 261 Va. 73, 540 S.E.2d at 494 (2001).

7. Id at 77.

8. Subsection B of § 2.2-3700.