May 1, 2007
By Mark R. Becker
Statutes commonly referred to as “Freedom of Information Acts” (FOIAs) or less commonly as “Data Practices Acts” are powerful tools that contractors and subcontractors engaged in public construction should use. Generally, FOIAs require public bodies to disclose records either immediately, or within a short time, after a person submits a written request for access to the records.
Scenarios where contractors and subcontractors may use FOIA requests to their advantage are:
– A second low bidder for a public construction project may use FOIA requests to review the public body’s bid files to evaluate potential challenges to the responsiveness of the low bidder’s bid, the public body’s evaluation of the low bidder’s responsibility, or the ability of a public body to waive irregularities.
– A contractor may use FOIA requests to review a public body’s internal correspondence or correspondence with the public body’s engineer to gather records supporting a claim for additional compensation.
– A contractor or a subcontractor may use FOIA request to acquire all records in a public body’s possession relating to subsurface conditions at a construction site, as part of the contractor’s or subcontractor’s pre-bid due diligence. Public bodies aggressively relying on pre-bid inspection clauses to deny differing site conditions claims might fault a contractor or subcontractor for not making a FOIA request to discover information that would have caused the contractor or subcontractor to bid differently.
– Where arbitration or litigation with the public entity seems inevitable, FOIA requests can be use to obtain substantial discovery outside of the typical processes (although some states limit this).
– A contractor faced with an uncommon issue may use FOIA requests to uncover records that may indicate how the public body may have addressed that issue in the past when other contractors have encountered the issue.
FOIA requests can be used in any number of situations in addition to the above. The creativity of the requesting persons is the primary limiting factor.
Generally, burdensome requests should be made with caution and restricted if the requestor is fearful of stirring up trouble or unwarranted attention.
Most FOIAs have a laundry list of exceptions that would entitle the public body to delay or refuse to provide the records. The significant and general rule is that public bodies will not be required to provide information protected by attorney client privileges, the work product doctrine, information about the review of competitive bids before the government makes an award, employment records of employees of the public body, and similar sensitive data. Each jurisdiction’s statute is different, and persons considering making a request should review the exceptions to avoid making inappropriate requests. Further, most FOIAs will not require the public body to generate new records or compilations, only to produce records that already exist.
Public bodies have a right to charge for copying expense and for labor costs incurred to locate and produce the requested records. In the author’s experience, it is less burdensome on the public body, and hence the requester’s pocket-book, simply to arrange for a time to inspect the documents in person and select for copying only those records that the requesting party actually needs. In addition, public bodies are usually very curious as to why a FOIA request was made and oftentimes provide important explanatory information regarding the written records produced.
Public bodies that refuse or fail to respond to FOIA requests do so at great risk. First, a requester typically is entitled to sue in court if a request is denied. If the courts agree that the request is appropriate, the public body will be required to comply, and the requester generally will be entitled to reimbursement of his or her attorneys’ fees. Attorneys’ fees might not be recoverable in cases where a FOIA request is made by a party with ongoing litigation with the public body and is using FOIA as an alternative discovery tool.
Second, a public body looks bad when it does not respond to a FOIA request. One of the main purposes of FOIA is to provide open access to public records so that the citizens can evaluate government at work and formulate lobbying and voting strategies. Another purpose is to promote transparency and to reduce fraud in government. A public body’s failure or refusal to respond to FOIA requests raises a suspicion of wrongdoing that elected or appointed officials should wish to avoid.
Sir Francis Bacon famously proclaimed: “knowledge is power.” Contractors and subcontractors engaged in public construction work should use every tool available to them to gain knowledge and accordingly gain power. FOIA requests are one of a contractor’s or subcontractor’s best tools to obtain essential knowledge.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © FWH&T