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ConstructionPro Week, Volume: 1 - Issue: 26 - 10/29/2012

Should All Documents on Public Contracts Be Public Information?

By Bruce Jervis

 

When a private company -- designer, constructor or manager -- contracts with a government entity, should that company’s dealings with other private companies be a matter of public record? That was the question posed in a recent case out of Minnesota.

 

The contract called for the design, management and construction of public schools. The contractor had subcontracted the architectural design to another company. The publisher of a local newspaper requested a copy of the subcontract. The prime contractor and the architect objected, citing confidential and proprietary information contained in the subcontract.

 

A Minnesota court ruled that the prime contractor had been performing a “governmental function.” The subcontract was a foreseeable, integral part of that function. The subcontract was public information.

 

This case was decided under a state statute, the Minnesota Government Data Practices Act. But most states have similar statutes. Should subcontract and other project data become public information simply because the project owner is a government entity? I welcome your comments.

 

COMMENTS

The word "ALL" is problematic. Detailed building plans and specifications should not be public information. They should be available for official use only because they contain information which could be misused to compromise public safety and security.
Posted by: Rocco J Rinaudo - Thursday, November 01, 2012 11:52 AM


Maybe an abstract/outline/memorandum should be required using specified statutory guidelines could be required. Yes, that is just another layer of paper but it could provide a balance between unfettered access due to the public interest related to the use of public funds and protection of proprietary or private information of the entities and operations involved.
Posted by: Jan - Thursday, November 01, 2012 12:09 PM


Yes – all and associate part of a public procurement should public. Most public procurement contract maintains the clause that all subcontractors are subject the same responsibilities to the public as the General Contractor. It should be noted that in general, confidential and proprietary information is never included in a subcontract.
Posted by: Adenegan - Thursday, November 01, 2012 12:18 PM


The solicitation should clarify what documents are required, the information that is to be public record and to what level of detail it must be available. Companies should have the right to know in advance and decline to bid on projects that require release of more proprietary information than they wish to share publicly.
Posted by: Marshall Wilson - Thursday, November 01, 2012 1:37 PM


Most states, including Minnesota, allow for documents to be marked "confidential" or "proprietary". If done properly, that allows for them to be redacted. However, when feeding at the public trough, there is at least an implied consent to full public disclosure.
Posted by: Kerry Stevenson - Thursday, November 01, 2012 3:01 PM


I have experienced something like this in Washington State a number of year ago, were under a public information disclosure request to a public utility, I was asked to search all my firm's emails for specific information. So this is not totally "new." One of the things we do is copyright a lot of stuff we didn't use to.

More information on WA State and some interpretation can be found at the following website

http://www.mrsc.org/publications/pra12.pdf

"... RCW 42.56.270 Financial, commercial, and proprietary information.

The following financial, commercial, and proprietary information is exempt from disclosure under this chapter:

(1) Valuable formulae, designs, drawings, computer source code or object code, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss;

Several cases have interpreted this exemption. In one, the Washington Supreme Court found that the cash flow analysis of port properties prepared for a port’s sole use in negotiations with prospective joint venture partners was within the research data exemption. In another case, the court found that a university’s research data relating to intellectual property was exempt from disclosure. In both decisions, the requesting party was denied his public disclosure request, because he would have profited and the government would

have incurred a loss.

By contrast, in a court of appeals decision the court found that documents used by professors and accountants hired by the city, to perform credit and financial analysis for the city’s loan guarantee for private shopping

center development, were not exempt. The city was unable to show a public loss resulting from the disclosure of the requested research.

MRSC has been asked whether this exemption applies to blueprints or other architectural drawings submitted to a city’s building department for review. It is doubtful that the exemption would often apply, because disclosure would not necessarily cause both “private gain and public loss.” Also, even though the person who submitted the materials has a copyright interest in the documents, disclosure is not automatically prohibited.

A court has held that an individual with a copyright interest in public records is not an indispensable party in an action to compel disclosure, and those requesting copies of the materials may be entitled to the records

if the facts meet the “fair use doctrine.” Consequently, MRSC has recommended that when there is a disclosure request for these types of materials, the agency should immediately notify the person who submitted the documents or architectural drawings to allow the person with a copyright interest the option of seeking a court order prohibiting disclosure.

In connection with the public bidding process, local governments often obtain information which bidders would not voluntarily divulge to their competitors. Such information may be exempt, if the “public loss” factor can be met. In any event, it would be wise to promptly notify a bidder if the city receives a request for such records...."
Posted by: Robert - Thursday, November 01, 2012 6:38 PM










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