Bedford County’s School Board held at least 14 closed meetings last year to review and discuss competing school construction plans.
The secrecy was permitted under PPEA, shorthand for the Public-Private Education Facilities and Infrastructure Act. That’s the 2002 law that shields private companies from public scrutiny when they submit infrastructure proposals for everything from schools to information technology.
In practice, the PPEA exemption from the Freedom of Information Act has led to government bodies routinely meeting behind closed doors as they sort through documents that submitters label “top secret” because they include “trade secrets” or confidential “proprietary information” (whatever THAT means!).
The issue got kicked over to the FOI Advisory Council for review, with access advocates arguing that some localities were unnecessarily agreeing to excessive secrecy, causing public distrust in the whole public-private partnership process.
Former Del. Bill Axselle, a council member and work-group co-chair, likened the process to the Wizard of Oz. “The curtain moves and suddenly there’s a $200 million contract.”
A current House member who helped bring the law to the council’s attention said he hopes the review will lead to better guidelines for what can be considered confidential information, as well as for when closed meetings are allowed. “There’s potential for great advantage to government (in PPEA),” said Del. Ken Plum, D-Reston. However, he said, there is also “enormous potential for mischief and misdeeds.”
Frosty Landon, VCOG executive director, said he hopes the review leads to new legislation to correct problems in the PPEA process. In general, he would like more public hearings, as well as more disclosures throughout the process – not just “at the 11th hour.”
“Under the terms of these agreements, the prospective private partner can in effect demand confidentiality for everything in (its) proposal,” Landon said. “The concern that we have is that local government is agreeing unnecessarily to excessive secrecy in these contracts.”
Landon said local officials need to learn that, “They don’t need to just roll over and allow the potential partner to stamp ‘Top Secret’ on everything.”
Plum said companies, particularly high-tech firms, have a lot of trade secrets, but a balance must be struck. “It’s really tough. You want to strive for the openness, but at the same time, you really want to get the best arrangement for the state,” he said.
In addition to the FOI Advisory Council study, an informal group of PPEA users was established to develop new guidelines for future PPEA projects. The guidelines envision interim agreements with private partners, thus opening up still another project stage likely to trigger access issues.