One of these is not like the others

The Washington Post and the Washington Business Journal have pieces this week comparing the economic development agreement Amazon and Arlington County signed with those the county signed with other businesses. The focus is on the provision having to do with requests for public records. In the Post article, the county attorney said the Amazon agreement is standard, just a variation on ones used for years.

It is a variation, but I disagree that it's standard and/or no different from previous agreements. Here's why:

Here are three priror agreements the county signed with other companies: Phone2Action, BNA and Nestle.

They truly are nearly identical. I also looked at a fourth one, with Applied Predictive Tech, which follows the same pattern.

Now, here's the provision from the Amazon agreement:

(o) Confidentiality. Amazon acknowledges that the County and the IDA will comply with the Virginia Freedom of Information Act (“VaFOIA”) and other applicable laws and regulations pertaining to the disclosure of records in their possession. Amazon further acknowledges that this Agreement is a public record subject to disclosure under VaFOIA, and that certain materials, communications, data, and information related to this Agreement, including reports and information submitted by VEDP or Amazon as provided in Section 9(n), may constitute public records subject to mandatory disclosure under VaFOIA and other applicable laws and regulations. Upon receipt of a request for such public records, the County Board and the IDA agree that they will disclose this Agreement and such portions of the materials, communications, data, and information related to this Agreement as is required by law. Prior to doing so, the County Board and the IDA agree to: (a) except as to the disclosure of this Agreement, give Amazon not less than two (2) business days written notice of the request to allow Amazon to take such steps as it deems appropriate with regard to the requested disclosure of records, and (b) disclose only such records as are subject to mandatory disclosure under VaFOIA or other applicable law or regulation. Amazon acknowledges that the County Board may include in periodic public reports Amazon’s reported information concerning jobs added, square feet Occupied, incentives that have been paid to Amazon and composite tax and revenue data. Amazon further acknowledges that the amount of each TOT Grant, the basic information required to calculate the amount of each TOT Grant and the fact that Amazon did or did not timely file a notarized affidavit reflect public records or information that may be disclosed by the County Board without notice to Amazon.

Clearly a lot more words, but let's dig into the real differences:

• In the first three, the county says it "will notify" the companies of a request. No timetable, no format. The Amazon agreement says the county will give “not less than two business days written notice” of a FOIA request to Amazon. That may not sound like much, but it's the added burden and "courtesy," as the county calls it, between a head's up (before or after the fact) and a contracted timetable.
• In the first three contracts, notice is being given so the IDA can “cooperate with [the company] to redact any information that is legally permitted to be redacted.”  For Amazon, however, the notice is not tied to redaction. Instead, the notice is “to allow Amazon to take such steps as it deems appropriate with regard to the requested disclosure.”  This is much more open-ended and could include Amazon going to court to prevent release. The county says it's never haad a situation "where a company felt threatened and ran to court," but the county hasn't had this kind of provision before! And if they think that it can't or won't happen, consider this case in California where a bus company went to court to prevent the release by Los Angeles of job-creation data. The court wisely required the data to be released, but the public had to wait through 18 months of litigation to get it.
• The first three agreements refer to requests for “reports and other information submitted.” In contrast, the Amazon agreement refers to "such records,” where records are defined as “records in their possession” and “certain materials, communications, data, and information related to this Agreement.” This isn't just about what the company has submitted. A record in the county's possession that contains information related to the agreement could include a wide variety of documents, from intra-county email discussions, data on fire inspections, reimbursements for meetings with Amazon executives to (and this isn't totally hypothetical, according to an article in the Washington Business Journal) building permits or site plans for future buidling leases, purchases or new construction.
• The first three agreements say that the county will "use reasonable efforts" to protect the confidentiality of the records submitted by the company. The Amazon provision says that the IDA will “disclose only such records as are subject to mandatory disclosure.” Again, with records defined broadly, that sounds to me that the IDA is agreeing not to exercise its discretion to disclose records that could be withheld but don’t have to be. FOIA's exemptions are discretionary (the preamble to every category of exemptions says: “but may be disclosed by the custodian in his discretion.”) Further, the policy statement of FOIA says the “provisions of this chapter shall be liberally construed to promote an increased awareness by all persons,” and exemptions “shall be narrowly construed.” It is not unusual for governments to have a policy of always using an exemption when it can, but that is different to me from contracting that policy. Policies can be broken on a case-by-case basis; contracts? not so much!

To me, these differences are not mere variations, and I do not believe I'm alone when I wish for state and county officials to acknowledge the real and substantive differences in what Amazon has been offered.