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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Suggested Citation:"III. STATE LAW SUMMARY." National Academies of Sciences, Engineering, and Medicine. 2010. Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements. Washington, DC: The National Academies Press. doi: 10.17226/14404.
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Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

31 be used to control contractor access to security informa- tion. However, FTA authorizes noncompetitive propos- als when disclosure of recipient’s needs would compro- mise national security.307 C. Procurement and Contract Management Issues Maintenance of transit agency records will be subject to USDOT and FTA requirements. These requirements constitute the minimum period that records must be retained; if state law requires longer periods of reten- tion, the stricter requirement will govern. As discussed below, certain FTA guidance on what information to include in procurement records may have implications for how those records must be managed. In addition to USDOT requirements, financial records may be subject to Internal Revenue Code requirements.308 USDOT’s common grant rule309 contains require- ments for records retention for grantees.310 While this provision does not apply to contractors, the rule re- quires grantees to place a similar provision in third party contracts, with the 3-year retention period begin- ning after all issues are resolved, not when the project is completed.311 The FTA Master Agreement requires grantees to maintain “intact and readily accessible” all third party contracts related to a federally funded project for 3 years after the transmission of the final expenditure report.312 Pursuant to 49 C.F.R. § 18.42, if an action such as litigation or audit involving the records begins before the 3-year retention period expires, the records at issue must be kept until the later of completion of the action and resolution of all issues or the expiration of the otherwise required 3-year period. Chapter III of FTA’s Third Party Contracting Guid- ance addresses the recipient’s responsibilities.313 Section & Erich R. Luschei, Prequalification of Contractors by State and Local Agencies: Legal Standards and Procedural Traps, 27 THE CONSTRUCTION LAWYER 21, Spring 2007, www.jonesday.com/files/Publication/1ccdcb41-cf82-4158-984b- 4e97deed5301/Presentation/PublicationAttachment/d36a1308- 33b4-4da2-920b-06bde881d321/McMillan_Luschei_2007.pdf (accessed Sept. 25, 2009). N.B.: This article does not address security issues. 307 FTA Circular 4220.1F, ch. VI, Procedural Guidance for Open Market Procurements, § 3.i(1)(e)2.f, at VI-18. 308 See FTA Frequently Asked Questions: Third Party Pro- curement—Record Retention, www.fta.dot.gov/funding/thirdpartyprocurement/faq/grants_fin ancing_6218.html. 309 49 C.F.R. pt. 18, Uniform administrative requirements for grants and cooperative agreements to State and local gov- ernments. 310 49 C.F.R. § 18.42. 311 49 C.F.R. § 18.36(i)(10) and (11). 312 Section 8, Reporting, Record Retention, and Access, FTA Master Agreement MA(16), Oct. 1, 2009, at 24, http://www.fta.dot.gov/documents/16-Master.pdf. 313 FTA Circular 4220.1F, Nov. 1, 2008. This document re- placed FTA Circular 4220.1E, the document referenced throughout the BPPM, 3 covers third party contracting capacity, including the need for contract administration, written procurement procedures (subsection a), and record keeping require- ments, including procurement history (subsection d). These requirements do not impose lengthier record re- tention periods than the common grant rule. Section 4 covers audits, suggesting but not mandating that grantees perform audits of third party contracts as part of the contract administration process. Section 10.3 of FTA’s Best Practices Procurement Manual summarizes FTA’s record retention require- ments and provides suggested language for using in third party contracts.314 Other provisions of the manual that relate to record retention and contents of contract documentation include recommendations to maintain file documentation that includes the statement of work/scope of services;315 include in the file that docu- ments the selection decision for negotiated procure- ments a technical evaluation indicating the relative strengths and weaknesses of the proposals, together with the technical risks of any of the approaches con- sidered;316 and include approvals and disapprovals of contract submittals required by the contract and re- quests for waivers or deviations from contractual re- quirements in the contract administration file.317 Includ- ing security information, particularly SSI, in such documentation will affect not only how the transit agency should respond to open records requests, but also how the documentation must be marked and stored. III. STATE LAW SUMMARY318 All 50 states and the District of Columbia have laws requiring public access to government documents,319 www.fta.dot.gov/documents/BPPM_fulltext.pdf. 314 Section 10.3 and other sections of the BPPM cite § 7.i., FTA Circular 4220.1E, as the requirement for record retention. This provision is now covered in FTA Circular 4220.1F, ch. III, The Recipient’s Responsibilities, § 3 d. 315 BPPM 2.4.1 File Documentation, ch. 2, at 17–19. 316 BPPM 5.4 Documentation of Procurement Actions, ch. 5, at 25–30. 317 BPPM 9.1 Documentation of Contract Administration, ch. 9, at 1–12. 318 State public records requirements may apply to all gov- ernments within the state. See, e.g., Public Records Act for Washington Cities and Counties, Report Number 61, May 2007, Municipal Research and Services Center, www.mrsc.org/Publications/pra06.pdf (accessed Apr. 1, 2009). In addition, local governments may have their own record re- tention and disclosure requirements. 319 Michael W. Field, Rhode Island’s Access to Public Records Act: An Application Gone Awry, 8 ROGER WILLIAMS U. L. REV. 293 (2003), at 294; Leanne Holcomb & James Isaac, Wiscon- sin’s Public-Records Law: Preserving the Presumption of Com- plete Public Access in the Age of Electronic Records, 2008 WIS. L. REV. 515, 517 (2008). The Reporters Committee for Freedom of the Press maintains an online Open Government Guide ana- lyzing all 50 state statutes, www.rcfp.org/ogg/index.php?AL22 (accessed July 28, 2009).

32 although, as discussed below, the scope of those laws differs. State requirements for disclosing or withholding information, as well as for maintaining records, are clearly relevant to information that is not created pur- suant to federal mandates or shared with federal agen- cies. Even where security information is submitted for purposes of completing federal grants or otherwise complying with federal law, state law may be relevant. For example, DHS recommends that applicants consult state and local laws concerning the release of informa- tion in considering what information to report in grant applications, needs assessments, and strategic plan- ning.320 Moreover, as discussed below, state procedural requirements must be considered even if information requested is clearly exempt from disclosure under fed- eral law. A myriad of state laws may affect a transit agency’s need to disclose or withhold information contained in contract documents, as well as to maintain contract records. Relevant types of state statutes typically in- clude public records/freedom of information, records management, and public contract laws. States may have transportation law titles that contain relevant provisions, as well as homeland security requirements that are relevant. Other categories of state laws that may have requirements for maintaining confidentiality of security information include state building codes (re- quirements for safe storage and secure handling of en- gineering and construction plans for critical structural components)321 and emergency preparedness/disaster response laws (disaster preparedness laws).322 Public records laws are likely to be the most impor- tant sources of disclosure requirements, while records management laws are most likely to be the source of requirements concerning what records a transit agency must maintain and for how long. The actual definition of “public records” under state law may reside in either type of statute. Public contract laws may have require- ments for both disclosure and record retention. Balancing of public interests is a principle that pub- lic agencies often apply in the open records arena, sometimes resulting in disclosure being found to be in the public interest and sometimes not.323 Depending on 320 Fiscal Year 2007 Homeland Security Grant Program, Ur- ban Areas Security Initiative: Nonprofit Security Grant Pro- gram, Program Guidance and Application Kit, Apr. 2007, at 13, www.ojp.usdoj.gov/odp/docs/FY07_UASI_Guidance.pdf. 321 E.g., VA. CODE § 36-105.3, Security of certain records, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+36-105.3. 322 E.g., VA. CODE § 44-146.22, Development of measures to prevent or reduce harmful consequences of disasters; disclo- sure of information, http://leg1.state.va.us/cgi- bin/legp504.exe?000+cod+44-146.22. 323 Cf., San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (Cal. App. 2d Dist. 1983) (public interest in monitoring city’s contracting for services and regu- lation of contractors’ fees charged to residents outweighs city’s interest in not discouraging contractors from submitting pro- prietary information justifying need for rate increases) and Eskaton Monterey Hosp. v. Myers, 134 Cal. App. 3d 788, 184 state law, public agencies, including transit agencies, may be called upon to explicitly balance competitive procurement and security considerations. These consid- erations may appear to be in conflict on their face. For example, the Northern Palm Beach County Improve- ment District questioned its authority to release build- ing plans to contractors for purposes of meeting its obli- gations under Florida’s competitive bidding requirements, in light of Section 199.07(3)(ee), Florida Statutes, which exempts certain public building plans from the mandatory disclosure requirements under Florida’s constitution. In response, the Florida Attorney General advised that the competitive bidding and secu- rity provisions should be read together “in a fashion that will allow them to operate together and give the fullest effect to each.” Accordingly, the Attorney Gen- eral advised that the Improvement District should re- lease the building designs to contractors as necessary to comply with competitive bidding requirements, but should require that the recipients maintain the exempt status of the information.324 In addition to coming under public records statutes, requests for security information may arise in litiga- tion. In such cases the agency may reasonably request that the recipient execute an NDA.325 A. Public Records Laws326—Disclosure Requirements A number of issues related to public records disclo- sure requirements are relevant to understanding how those requirements affect managing security informa- tion in the competitive procurement process. These in- clude the applicability of state public records laws to public transit agencies in the state, the definition of public record under state law, whether state law in- cludes a presumption of disclosure or of denial, the ap- proach to exemptions under state law, the burden of proof on classifying information as exempt from disclo- Cal. Rptr. 840 (Cal. App. 3d Dist. 1982) (Public interest in pre- venting regulated businesses from circumventing effective compliance investigations by obtaining auditors’ procedural manuals outweighs any public interest in disclosure). 324 Florida Attorney General Advisory Legal Opinion AGO 2002-74 – Nov. 4, 2002, http://myfloridalegal.com/ago.nsf/Opinions/D4CFF22D8B492B DF85256C6700541A22 (accessed Apr. 1, 2009); Summary: http://brechner.org/reports/2002/12dec2002.pdf (accessed Apr. 1, 2009). 325 E.g., Blum v. N.Y. Stock Exchange, Inc., 263 A.D. 2d 522, 693 N.Y.S.2d 225 (N.Y.A.D. 2 Dept. 1999) (reasonable to re- quire plaintiff in suit under New York State Human Rights Law (Executive Law § 290, et seq.) to execute confidentiality agreement before receiving documents regarding the security and evacuation routes of defendant, as defendant sufficiently demonstrated that documents sought by plaintiff involved sen- sitive security information which, if released to public, could jeopardize the safety of defendant’s employees). 326 For a review of state public records laws, see Burt Braverman and Wesley Heppler, A Practical Review of State Open Records Laws, 49 GEO. WASH. L. REV. 720 (1981).

33 sure, the applicability of disclosure requirements to contract documents, and penalties for violating disclo- sure requirements. This section touches on all of these issues. Specific exemptions are discussed in the follow- ing two sections. In addition to state laws, public agencies may be subject to local public records requirements.327 Gener- ally, but not always, these ordinances rely on existing state law.328 1. Applicability to Transit Agencies It is more likely than not that state disclosure re- quirements will apply to a public transit agency within the state. Many state public records laws make those laws applicable to all political subdivisions, as well as quasi-governmental agencies that receive public funds. Missouri, for example, includes in its definition of “pub- lic governmental body” not only political subdivisions but quasi-governmental bodies and bi-state develop- ment agencies.329 327 E.g., San Francisco Sunshine Ordinance, § 67, www.sfgov.org/site/sunshine_page.asp?id=34495 (accessed Sept. 26, 2009). 328 Looking for Sunshine: Protecting Your Right to Know, League of Women Voters, Jan. 2006, www.lwv.org/Content/ContentGroups/Projects/OpennessinGove rnment/40404_LWV_LoRes.pdf (accessed Sept. 29, 2009). 329 M.R.S. § 610.010 (4), http://ago.mo.gov/sunshinelaw/chapter610.htm#header1 pro- vides: (4) “Public governmental body,” any legislative, administra- tive or governmental entity created by the constitution or stat- utes of this state, by order or ordinance of any political subdivi- sion or district, judicial entities when operating in an administrative capacity, or by executive order, including: *** (c) Any department or division of the state, of any political subdivision of the state, of any county or of any municipal gov- ernment, school district or special purpose district including but not limited to sewer districts, water districts, and other subdis- tricts of any political subdivision; *** (f) Any quasi-public governmental body. The term “quasi- public governmental body” means any person, corporation or partnership organized or authorized to do business in this state pursuant to the provisions of chapter 352, 353, or 355, RSMo, or unincorporated association which either: a. Has as its primary purpose to enter into contracts with public governmental bodies, or to engage primarily in activities carried out pursuant to an agreement or agreements with public governmental bodies; or b. Performs a public function as evidenced by a statutorily based capacity to confer or otherwise advance, through ap- proval, recommendation or other means, the allocation or issu- ance of tax credits, tax abatement, public debt, tax-exempt debt, rights of eminent domain, or the contracting of leaseback agreements on structures whose annualized payments commit public tax revenues; or any association that directly accepts the appropriation of money from a public governmental body, but only to the extent that a meeting, record, or vote relates to such appropriation; and (g) Any bi-state development agency established pursuant to section 70.370, RSMo. In addition, most states make public records re- quirements directly applicable to private entities under certain circumstances. Thus, depending on state law, even private contract providers of public transportation may be directly subject to open records requirements.330 2. Definition of Public Record Generally, state law is likely to define “public record” rather broadly, although the specificity of the definition may vary from state to state. For example, Arizona de- fines “records” as follows: In this chapter, unless the context otherwise requires, “records” means all books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics, including prints or copies of such items produced or reproduced on film or electronic media pur- suant to section 41-1348, made or received by any gov- ernmental agency in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by the agency or its legiti- mate successor as evidence of the organization, functions, policies, decisions, procedures, operations or other activi- ties of the government, or because of the informational and historical value of data contained therein.331 The Arizona Supreme Court considers this to be a broad definition, but has held that in construing the meaning of “public records,” documents must have a substantial nexus with the government agency’s activi- ties to be considered public records,332 a standard that 330 Craig D. Feiser, Protecting the Public’s Right to Know: The Debate Over Privatization and Access to Government In- formation Under State Law, 27 FLA. STATE L. REV. 825, www.law.fsu.edu/Journals/lawreview/downloads/274/Feiser.pdf . 331 ARIZ. REV. STAT. 41-1350. Definition of records, www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/41/013 50.htm&Title=41&DocType=ARS. Definitions may be less spe- cific and still cover a broad range of documents. For example, Alabama defines public records as follows: As used in this article, the term "public records" shall include all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public of- ficers of the state, counties, municipalities and other subdivi- sions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer. ALA. CODE § 41-13-1, www.legislature.state.al.us/codeofalabama/1975/41-13-1.htm. 332 Griffis v. Pinal County, 215 Ariz. 1, 156 P.3d 418, 421 (2007) (holding that mere possession of personal records by a government employee does not make the records public for purposes of disclosure requirements). See Lindsay J. Taylor, Griffis v. Pinal County: Establishing When a Public Official’s Personal Emails Are Public Records Subject to Disclosure, 49 ARIZ. L. REV. 1027 (2007). The Colorado Supreme Court has taken a similar view of the status of public records under its state’s law, which requires that public records be those that a public agency “made, maintained, or kept for use in exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.” Denver

34 should cover contracting documents. In contrast, the recently enacted Pennsylvania Right to Know Law pre- sumes a record in the possession of a local agency to be a public record (subject to stated exemptions).333 The Washington Public Records Act defines “public record” as including “any writing containing informa- tion relating to the conduct of government or the per- formance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”334 The Washington Supreme Court has held that informa- tion “applied to a given purpose or instrumental to an end or process” is “used” under this definition, so that where there is a connection between the information and the agency’s decision-making process, “evaluation, and reference to information constitutes ‘use’ and, therefore, qualifies such information as a public re- cord.”335 The Concerned Ratepayers court found that the information at issue came under this definition, despite the fact that the agency did not possess or use the in- formation in its final work product.336 State statutes vary on whether they address elec- tronic records. The absence of specific provisions may leave the status of electronic records under disclosure statutes unclear.337 In addition, the assessment of what constitutes a public record may be complicated by the proliferation of electronic record keeping and software that allows collaborative access as well as document management capabilities. Where it is clear that elec- tronic records are covered, ancillary documents such as emails can be considered public records. State law may require that the content of such electronic documents have the requisite nexus to public business.338 For ex- ample, a Wisconsin court examined the status of an Publishing Co. v. County Comm. of Arapahoe, 121 P.3d 190, 191 (Col. 2005) (simple possession, creation, or receipt of email record by public official or employee not dispositive as to whether the record is “public record;” inquiry must be content- driven). 333 Section 305, Act 3 of 2008, Right to Know Law, www.dced.state.pa.us/public/oor/pa_righttoknowlaw.pdf. 334 WASH. REV. CODE 42.56.010, Definitions, http://apps.leg.wa.gov/rcw/default.aspx?cite=42.56.010. 335 Concerned Ratepayers Ass’n v. Pub. Utility Dist. No. 1 of Clark County, Wash., 138 Wash. 2d 950, 983 P.2d 635, 637 (1999). The court refers to WASH. REV. CODE 42.17.020(36), the predecessor provision to WASH. REV. CODE 42.56.010, which is substantively the same provision. 336 Id. at 640–42. 337 See Leanne Holcomb & James Isaac, Wisconsin’s Public- Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records, 2008 WIS. L. REV. 515, 517 (2008). The authors argue that deleted emails and other electronic documents should be treated as public records sub- ject to disclosure. 338 See Griffis, 156 P.3d 418. The GAO has discussed the public records challenge of managing email at the federal level. U.S. GOV’T ACCOUNTABILITY OFFICE, FEDERAL RECORDS, AGENCIES FACE CHALLENGES IN MANAGING E-MAIL (2008), www.gao.gov/new.items/d08699t.pdf. email concerning city business that was sent from a private citizen to a public official. The court found that having the email discussed by the official at a public meeting provided the necessary nexus, with disclosure requirements extending to the meta data as well as the body of the email.339 State law may specify whether contractors’ records are subject to the state public records requirements. For example, Pennsylvania law specifically subjects to the Right to Know Law public records in the possession of a contractor performing a government function for a local agency.340 Wisconsin law requires a state authority to make records produced or collected under contract with the authority (except for specified personally identifi- able information) publicly available to the same extent as if the records were maintained by the authority.341 Accordingly, under Wisconsin law a state authority may not avoid public records requirements by delegating a record’s creation and custody to an agent.342 While this specific provision does not apply to local agencies in Wisconsin, similar requirements in other jurisdictions may apply to local agencies or to state-level transit agencies. A related issue is the status of documents that are not, strictly speaking, contracts, but are related to con- tract documents. The Pennsylvania Right to Know Law specifically includes a contract dealing with receipt or disbursement of funds by any agency in the definition of public record,343 with the requester of information bear- ing the burden of establishing that particular docu- ments indeed fall within that definition.344 The Pennsyl- vania Supreme Court has held that documents that are not facially classified as contracts may nonetheless be held to be public records “where the information re- quested was sufficiently connected to or closely related to these statutory categories.”345 Where state statutes do not clearly address under public records acts the status of records created by con- tractors, courts will look to the facts of the case, includ- ing whether the records are in the possession of or un- der the control of the public agency. For example, the Arkansas Supreme Court has suggested that docu- ments may be under the administrative control of a 339 O’Neill v. City of Shoreline, 145 Wash. App. 913, 187 P.3d 822 (2008). 340 Section 506(d), Act 3 of 2008, Right to Know Law, www.dced.state.pa.us/public/oor/pa_righttoknowlaw.pdf. 341 WIS. STAT. § 19.36(3), www.legis.state.wi.us/statutes/Stat0019.pdf. 342 Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shore- wood, 186 Wis. 2d 443, 521 N.W.2d 165 (Wis. App. 1994). 343 65 PA. STAT. § 66.1. 344 State Univ. v. State Employees’ Ret. Bd., 880 A.2d 757, 763 (Pa. Cmwlth. 2005), citing LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001). 345 Id. at 764 (Pa. Cmwlth. 2005), citing LaValle v. Office of Gen. Counsel, 564 Pa. 482, 493–94, 769 A.2d 449, 456 (2001) and North Hills News Record v. Town of McCandless, 555 Pa. 51, 722 A.2d 1037 (1999).

35 state agency even if they are in physical possession of a private contractor, making the documents public re- cords under that state’s FOIA.346 The court stated that it “will not permit the circumvention of the FOIA by the simple ‘handoff’ of documents to entities not covered by the Act.”347 3. Presumption of Disclosure Some state statutes explicitly provide that they are to be construed as providing for disclosure. For exam- ple, Maryland’s Public Information Act state law re- quires that the statute “be construed in favor of permit- ting inspection of a record.”348 Other statutory language that is generally construed as creating a presumption of disclosure includes language that provides a right to inspect all public records unless otherwise exempted and language that places on the government agency the burden of establishing the appropriateness of asserting an exemption. For example, Alabama’s statute provid- ing its citizens the right to inspect and copy any public writing unless otherwise expressly provided by stat- ute349 has been interpreted to constitute a presumption in favor of public disclosure.350 Similarly, under New York’s Freedom of Information Law, the requirement of making all agency records available, except to the ex- tent exempted, is construed as creating a presumption of access.351 The presumption of disclosure may be the basis for a requirement to segregate exempt and nonexempt in- formation.352 State law may require that where an agency has identified an applicable exemption, the agency review the record to determine whether the ex- empt portions can reasonably be excised; if so, the agency must redact the exempt portion(s) and disclose the rest of the record. States that expressly require seg- regation include Hawaii,353 Idaho,354 Nebraska,355 New 346 ARK. CODE ANN. §§ 2519101–2519109 (Repl. 2002 & Supp. 2005). 347 Nabholz Constr. Corp. v. Contractors for Public Prot. Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007). 348 Public Information Act, § 10-612(b). See Maryland Public Information Act Manual, ch. III, Exceptions to Disclosure (11th ed. 2008), www.oag.state.md.us/Opengov/pia.htm. 349 ALA. CODE, § 36-12-40. 350 Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala. 1989). 351 Matter of Citizens for Alternatives to Animal Labs v. Bd. of Trustees of State Univ. of N.Y., 92 N.Y.2d 357, 703 N.E.2d 1218, 681 N.Y.S.2d 205 (1998); Committee on Open Govern- ment, FOIL-AO-14554, Mar. 5, 2004, www.dos.state.ny.us/COOG/ftext/f14554.htm. 352 Committee on Open Government, FOIL-AO-14554, Mar. 5, 2004, citing Gould v. N.Y. City Police, 89 NY.2d 267, 276 (1996), www.dos.state.ny.us/COOG/ftext/f14554.htm. 353 The Uniform Information Practices Act (Modified), at 36, 40-41, www.state.hi.us/oip/UIPA%20Manual%205aug08.pdf. 354 IDAHO CODE § 9-341, www.legislature.idaho.govidstat/Title9/T9CH3SECT9-341.htm. 355 NEB. REV. STAT. § 84-712.06, Mexico,356 North Dakota,357 Oklahoma,358 Oregon,359 and Wisconsin.360 In addition to requiring segregation, the Missouri statute requires agencies to design public re- cords to facilitate segregation to the extent practica- ble.361 The issue may also be addressed indirectly, as under the North Carolina statue providing that com- mingling of confidential and nonconfidential informa- tion is not a valid basis for refusing to provide informa- tion.362 4. Approach to Exemptions Generally state laws provide that public disclosure exemptions are to be narrowly construed. Examples include Arkansas,363 Kentucky, 364 Massachusetts,365 Mis- souri,366 Nevada,367 and Washington.368 Strict construc- tion may prohibit courts from going beyond statutory language to create exemptions. For example, the Dis- http://uniweb.legislature.ne.gov/laws/statutes.php?statute=s84 07012006. 356 Section 14-2-9(A), NMSA, www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main- h.htm&2.0. 357 2004 N.D. Op. Atty. Gen. Open Records and Meetings Opinion 2004-O-23, citing N.D. CENT. CODE § 44-04-18.10, www.ag.nd.gov/Opinions/2004/OR/2004-O-23.pdf. 358 51 OKLA. STAT. SUPP. 2005 § 24A.5.2, www.lsb.state.ok.us/osstatuestitle.html. 359 OR. REV. STAT. 192.505, www.leg.state.or.us/ors/192.html. 360 WIS. STAT. § 19.36(6), www.legis.state.wi.us/statutes/Stat0019.pdf. 361 MO. REV. STAT. § 610.024. Public record containing ex- empt and nonexempt materials, nonexempt to be made avail- able—deleted exempt materials to be explained, exception, http://ago.mo.gov/sunshinelaw/chapter610.htm#header8. 362 N.C. GEN. STAT. § 132[ ]6(c), www.ncleg.net/EnactedLegislation/Statutes/HTML/ByChapter/ Chapter_132.html. 363 Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000) (court narrowly construes exemptions “to counterbalance the self- protective instincts of the government bureaucracy.”). 364 KY. REV. STAT. 61.871, Policy of KY. REV. STAT. 61.870 to 61.884—Strict construction of exceptions of KY. REV. STAT. 61.878. (Strict construction of exceptions required “even though such examination may cause inconvenience or embarrassment to public officials or others.”), www.lrc.ky.gov/KRS/061-00/871.PDF. 365 Attorney General v. Assistant Comm’r of the Real Prop- erty Dep’t of Boston, 380 Mass. 623, 625, 404 N.E.2d 1254, 1255–1256 (1980). 366 MO. REV. STAT. § 610.011. Liberal construction of law to be public policy, http://ago.mo.gov/sunshinelaw/chapter610.htm#header2. 367 NEV. REV. STAT. 239.001, www.leg.state.nv.us/NRS/NRS-239.html#NRS239Sec001. 368 WASH. REV. CODE 42.56.030, http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56.030.

36 trict of Columbia strictly construes its exemptions and does not allow judicially-created exemptions. 369 State courts may prohibit blanket assertions of ex- emptions. For example, New York requires that the agency demonstrate the applicability of the exemption by “articulating a particularized and specific justifica- tion for denying access.”370 The New York court requires that a record fit precisely within the cited exemption to be withheld.371 Arkansas takes the same approach, re- quiring a record that does not fall clearly within an ex- emption to be disclosed.372 State laws vary as to whether an applicable exemp- tion precludes disclosure or merely provides a basis for denying disclosure. Arkansas, for one, requires agencies to withhold information that falls within an exemption, except under court order, subpoena, or written consent of the person protected by the exemption.373 States whose exemptions are deemed to be discretionary in- clude Hawaii,374 Michigan,375 New York,376 and South Carolina.377 Nebraska’s statute sets forth categories of records that may be withheld at the discretion of the lawful custodian unless they are publicly disclosed in open court, open administrative proceeding, or open meeting or are disclosed by a public agency pursuant to its duties.378 The District of Columbia statute provides that exemptions do not apply if disclosure of informa- tion is authorized or mandated by other law.379 State laws may include a general exemption that specifically calls for balancing the public interest in favor of disclosure against the public interest in favor of nondisclosure. For example, California’s Public Records Act allows an agency to withhold information “by dem- onstrating that…on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclo- 369 D.C. CODE ANN. § 2-534(b); Barry v. Wash. Post Co., 529 A.2d 319, 321 (D.C. 1987). 370 Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 496 N.E.2d 665, 667, 505 N.Y.S.2d 576, 578 (1986). 371 Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 393 N.E.2d 463, 465, 419 N.Y.S.2d 467, 471 (1979); Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 880 N.E.2d 10, 849 N.Y.S.2d 489 (2007). 372 E.g., Orsini, 340 Ark. 665. 373 Ark. Op. Att'y Gen. Nos. 99-334, 91-374, 91-323. 374 The Uniform Information Practices Act (Modified), at 34, www.state.hi.us/oip/UIPA%20Manual%205aug08.pdf. 375 Tobin v. Mich. Civil Serv. Comm’n, 98 Mich. App. 604, 296 N.W.2d 320 (1980). 376 Capital Newspaper v. Burris, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986). 377 S.C. CODE ANN. § 30-4-40, www.scstatehouse.gov/code/t30c004.htm. 378 NEB. REV. STAT. § 84-712.05, http://nebraskalegislature.gov/laws/laws-index/chap84- full.html. 379 Dunhill v. Dir., D.C. Dep't of Transp., 416 A.2d 244 (D.C. 1980). sure of the record.”380 Absent a provision explicitly re- quiring a balancing of public interests, the state court may take the position that an exemption requires no balancing beyond the language of the exemption.381 5. Burden of Proof re Classification of Information as Exempt from Disclosure Under Federal FOIA, the agency asserting the ex- emption bears the burden of proving that the requested information falls within the exemption. States that similarly place the burden on the government agency that seeks to assert an exemption include Arkansas,382 California,383 Connecticut,384 Hawaii,385 Nevada,386 New York,387 Rhode Island,388 and Washington.389 The burden is generally required to be met with a specific showing, rather than conclusory claims.390 At least two states employ a preponderance of the evidence standard.391 380 CAL. GOV’T CODE § 6255, subd.(a). Cf., Washington’s Pub- lic Disclosure Act, ch. 42.17, WASH. REV. CODE, held not to contain any general exemption. Progressive Animal Welfare Society (PAWS) v. The Univ. of Wash., 125 Wash. 2d 243, 884 P.2d 592 (1994). 381 E.g., Dir., Dep’t of Information v. Freedom Comm’n, 274 Conn. 179, 192, 874 A.2d 785, 793 (Conn. 2005) (no separate balancing of public interest required under exemption for re- cords where there is reasonable basis to believe disclosure may result in safety risk). 382 Orsini, 340 Ark. 665. 383 Michaelis, 44 Cal. Rptr. 3d at 667 (citation omitted). 384 FOIA Comm., 874 A.2d 785. A town's director of informa- tion technology refused a request for copies of computerized data from a town's geographic information system based on several exemptions including Conn. Gen. Stat. § 1-210(b)(19). The appellate court held that the IT director failed to meet his burden of seeking a determination from the commissioner of public works that the GIS information fell under the public safety exception, and so affirmed the earlier decisions requir- ing disclosure. Id. at 189. 385 HAW. REV. STAT. § 92F-15(c), www.state.hi.us/oip/uipa.html#92F15. 386 NEV. REV. STAT. 239.0113, Burden of proof where confi- dentiality of public book or record is at issue, www.leg.state.nv.us/NRS/NRS-239.html#NRS239Sec0113. 387 Fink, 47 N.Y.2d 567; Data Tree, 880 N.E.2d 10. 388 Section 38-2-10, www.rilin.state.ri.us/statutes/title38/38- 2/38-2-10.HTM. 389 WASH. REV. CODE 42.56.550, http://apps.leg.wa.gov/RCW/default.aspx?cite=42.56.550. See Rental Housing Ass’n v. City of Des Moines, 199 P.3d 393, 165 Wash. 2d 525 (Wash. 2009). 390 E.g., Trombley v. Bellows Falls Union High Sch. Dist., 160 Vt. 101, 624 A.2d 857 (1993). 391 Nevada: NEV. REV. STAT. 239.0113, Burden of proof where confidentiality of public book or record is at issue, www.leg.state.nv.us/NRS/NRS-239.html#NRS239Sec0113; Virginia: Virginia Freedom of Information Act, VA. CODE ANN. § 2.2-3713(E), http://leg1.state.va.us/cgi- bin/legp504.exe?000+cod+2.2-3713.

37 6. Applicability to Contract Documents As noted, supra, contract documents are likely to come within the definition of public record, particularly those documents within a transit agency’s possession. Interests in protecting contract information may shift between the time bids are submitted and the time bid- ding is closed.392 However, for the most part this distinc- tion runs to protecting the government interest in pre- serving competition, rather than being applicable to security information. For example, in Hawaii, the gen- eral exemption under the Uniform Information Prac- tices Act for information that must be confidential to protect legitimate government functions has been in- terpreted to apply to information that “if disclosed, would raise the cost of government procurements or give a manifestly unfair advantage to any person pro- posing to enter into a contract or agreement with an agency.” Hawaii’s Attorney General has applied this interpretation to find that before bid submission an agency may withhold the identity of persons that have picked up or received bid solicitations, attended a bid- der’s conference, or submitted a notice of intent to bid or bid itself; after bid submission the information must be made publicly available.393 Vermont also protects records of contract negotiations.394 Even after the contractor has been selected, informa- tion may be protectable until the contract is finalized.395 Again, this requirement goes to protecting the govern- ment’s competitive position, rather than protecting se- curity information. 392 E.g., FLA. STAT. § 119.071(1)(b) [protection of sealed bids and competitive negotiations until decision made]. www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Stat ute&Search_String=&URL=Ch0119/SEC071.HTM&Title=- %3E2008-%3ECh0119-%3ESection%20071#0119.071; FLA. STAT. § 337.168, Confidentiality of official estimates, identities of potential bidders, and bid analysis and monitoring system, www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Sta tute&Search_String=&URL=Ch0337/SEC168.HTM&Title=- %3E2008-%3ECh0337-%3ESection%20168; N.Y.S. Committee on Open Government opinion, Aug. 2, 1993, letter to City At- torney of City of North Tonawanda, www.dos.state.ny.us/coog/ftext/f7837.htm (accessed Mar. 31, 2009). 393 Dec. 15, 1994, letter from Office of Information Practices, Department of Attorney General to State Procurement Office, www.state.hi.us/oip/opinionletters/opinion%2094-26.PDF (ac- cessed Aug. 10, 2009). 394 1 VT. STAT. ANN. § 317(c)(15), Records of contract nego- tiations (1976). See Legislative Council Staff Report on Public Records Requirements in Vermont, Jan. 2007, www.leg.state.vt.us/REPORTS/07PublicRecords/Public%20Rec ords%20Requirements%20in%20Vermont.pdf (accessed Sept. 20, 2009). 395 N.Y.S. Committee on Open Government opinion, Jan. 31, 2000, FOIL-AO-11933, www.dos.state.ny.us/coog/ftext/f11933.htm (accessed Mar. 31, 2009). 7. Penalties for Violations/Attorney Fees State law may provide penalties for violating open records act provisions. Generally these provisions apply to negligent or willful violations. The severity of penal- ties for violations varies. For example, Kansas public agencies that knowingly violate provisions of the Open Records Act may be subject to civil penalties, up to $500 per violation.396 Maine law provides for similar penal- ties.397 Minnesota’s statute provides for larger civil pen- alties and makes willful violation of the Government Data Act a misdemeanor and just cause for suspension without pay or dismissal of a public employee.398 Mis- souri provides for civil penalties against public govern- mental bodies and members of public governmental bodies who willfully violate the Sunshine Law and for the removal and fining or jailing of public officials who violate the Public Records Act.399 Nebraska provides for similar penalties for officials who violate the open re- cords provisions, and provides equitable remedies for citizens who seek to enforce the public records provi- sions, including attorneys fees and other litigation costs for citizens who substantially prevail.400 West Virginia makes willful violation of the state Freedom of Informa- tion chapter a misdemeanor punishable by fine and/or imprisonment.401 Wisconsin allows both actual and pu- nitive damages for willfully delaying release of informa- tion, as well as allowing forfeitures up to $1,000 for ar- bitrary and capricious denial or delay of requests for information.402 Depending on the structure of state law, such penalties may also apply to violation of records management statutes.403 396 KAN. STAT. ANN., 45-223, Civil penalties for violations, Accessible from www.kslegislature.org/legsrv- statutes/index.do. 397 ME. REV. STAT. ANN. § 410, Violations, www.mainelegislature.org/legis/statutes/1/title1sec410.html. 398 MINN. STAT. § 13.08, www.revisor.leg.state.mn.us/statutes/?id=13.08; MINN. STAT. § 13.09, www.revisor.leg.state.mn.us/statutes/?id=13.09. 399 MO. REV. STAT. § 610.027, Violations—remedies, proce- dure, penalty—validity of actions by governing bodies in viola- tion—governmental bodies may seek interpretation of law, attorney general to provide. http://ago.mo.gov/sunshinelaw/chapter610.htm#header11; MO. REV. STAT. § 109.180, www.moga.mo.gov/statutes/C100- 199/1090000180.HTM. 400 NEB. REV. STAT. § 84-712.09, http://uniweb.legislature.ne.gov/laws/statutes.php?statute=s84 07012009; NEB. REV. STAT. § 84-712.09, http://uniweb.legislature.ne.gov/laws/statutes.php?statute=s84 07012007. 401 W.VA. CODE § 29B-1-6, www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=29b . 402 WIS. STAT. § 19.37, www.legis.state.wi.us/statutes/Stat0019.pdf. 403 E.g., LA. REV. STAT. § 44-37, Penalties for violation by custodians of records, www.legis.state.la.us/lss/lss.asp?doc=99714.

38 Although state statutes may specify the penalty, transit agencies may have to look to the case law to determine how those penalties are applied. For exam- ple, in Washington, the open records law provides for a penalty ranging from $5 to $100 per day that a record is improperly withheld.404 The Washington Supreme Court has held that the penalties need not be assessed per record and that trial courts must assess a penalty for each day a record is withheld.405 The state court has set forth the factors—both mitigating and aggravating— that a trial court should consider in setting penalties.406 State public records acts may provide for attorney fees for the prevailing party.407 A California court has held that under the California Public Records Act the requesting party need not receive all requested docu- ments to prevail: where the requesting party received one of two requested documents—without question only because of the lawsuit—and the claim for the document not disclosed was not frivolous, the requesting party had prevailed.408 B. Public Records Laws—Security Exemptions409 There are various types of security exemptions, many of which have been adopted since 9/11.410 It is not uncommon for security exemptions to exclude the dis- closure of information related to structural or environ- mental problems in buildings or information connected to inquiries conducted after the occurrence of catastro- phic events.411 The discussion of examples of types of security exemptions is intended to provide context for transit agencies in developing their own security poli- cies. 404 WASH. REV. CODE 42.56.550(4). 405 Yousoufian v. Ron Sims, 152 Wash. 2d 421, 425, 98 P.3d 463, 465 (2004). 406 Yousoufian v. Ron Sims, 165 Wash. 2d 439, 200 P.3d 232 (2009). 407 E.g., Arizona: ARIZ. REV. STAT. § 39-121.02(B) (Supp. 2006) (attorneys’ fees may be awarded if the person seeking public records substantially prevails); California Public Re- cords Act, Government Code, § 6259(d) (court costs and rea- sonable attorney fees to plaintiff should plaintiff prevail; court costs and reasonable attorney fees to public agency if court finds plaintiff’s case is clearly frivolous). 408 L.A. Times v. Alameda Corridor Transp. Auth., 107 Cal. Rptr. 2d 29, 88 Cal. App. 4th 1381 (Cal. Ct. App. 2d Dist. 2001). 409 See Cathy Atkins and Larry Morandi, Protecting Water System Security Information, Sept. 2003 discussion of National Conference of State Legislatures, Description of FOIA Exemp- tions, available at http://www.oe.netl.doe.gov/documents/Water_Security.pdf. 410 Right to Know vs. Need to Know: States Are Re-examining Their Public-Records Laws in the Wake of Sept. 11, Homeland Security Brief, The Council of State Governments, Dec. 2003, www.csg.org/pubs/Documents/Brief1003RightToKnow.pdf (ac- cessed Sept. 20, 2009). 411 E.g., Virginia: VA. CODE § 2.2-3705.02, Exclusions to ap- plication of chapter; records relating to public safety, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-3705.2. Some states directly address the issue of protection of CII/SSI, although not necessarily specifically in the context of transportation. For example, Arizona’s public records law provides: “Nothing in this chapter requires the disclosure of a risk assessment that is performed by or on behalf of a federal agency to evaluate critical en- ergy, water or telecommunications infrastructure to determine its vulnerability to sabotage or attack.”412 The statutory construction argument could be made that because such statutes specifically protect other infra- structure but not transportation infrastructure, that transportation infrastructure is not protected. However, we are not aware of any decisions to that effect. State security exemptions may also explicitly ad- dress providing contractor access to exempted informa- tion. For example, Florida’s security exemption for building plans and blueprints specifically provides that the exempt security information may be disclosed to “a licensed architect, engineer, or contractor who is per- forming work on or related to the building, arena, sta- dium, water treatment facility, or other structure owned or operated by an agency.”413 However, it is not clear whether the disclosure provision applies to con- tractors at the bidding stage. The language in the Mis- souri state statute is arguably more expansive: “Noth- ing in this exception shall be deemed to close information regarding expenditures, purchases, or con- tracts made by an agency in implementing these guide- lines or policies.”414 This language takes expenditure, purchase, and contract information out of the security exemption. It is not yet apparent to what extent state security exemptions have been used to protect security informa- tion. For example, in 2007, the Maryland Office of the Attorney General (OAG) submitted a report to the Maryland Governor and General Assembly on the pub- lic security exception added in 2002 to Maryland’s Pub- lic Information Act. The OAG reported that the excep- tion had rarely been asserted to deny a public records request and there had been no reported (and apparently no unreported) cases applying the exception. Nonethe- less, the OAG recommended that the exception be re- tained without modification.415 The OAG found that two agencies had decided not to invoke the security exemp- tions after the requesters agreed to conditions: in one case, not making a copy of the requested information 412 ARIZ. REV. STAT. 39-126, Federal risk assessments of in- frastructure; confidentiality, www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/39/001 26.htm&Title=39&DocType=ARS. 413 FLA. STAT. § 119.071(3)(b)3.b, www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Sta tute&Search_String=&URL=Ch0119/SEC071.HTM&Title=- %3E2008-%3ECh0119-%3ESection%20071#0119.071. Building plans and blueprints are protected under this exemption if they depict internal layout and structural elements of structures owned or operated by government agencies. 414 MO. REV. STAT. § 610.021(18), http://ago.mo.gov/sunshinelaw/chapter610.htm#header7. 415 GANSLER, supra note 53.

39 and in the other, undergoing a background check before receiving the information.416 The OAG found that the language in the security exception—that authorizing the custodian to deny inspection “only to the extent” that disclosure would threaten public security as speci- fied under the statute—allowed what would otherwise be unauthorized conditions on disclosure. The OAG noted that even without this exception, federal statutes such as the CIIA would preclude disclosing certain in- formation under the Act because the general rule of access under the Act is “unless otherwise provided by law.”417 This section provides examples of the types of secu- rity exemptions that states have enacted. The intent is to provide context to assist transit agencies in analyzing the specific exemptions under their own state law. A state-by-state list of security exemptions is included as Appendix C, infra. 1. Endanger Life or Safety New York’s Freedom of Information Law (FOIL) al- lows an agency to deny access to information disclosure that could “endanger the life or safety of any person.” 418 In response to a requester who had been denied access to information concerning security deployment at a county event, the agency that provides opinions on FOIL stated that the detail requested should have some bearing on whether information should be subject to this exception. The committee provided this example: For instance, there is unquestionably an interest in en- suring a safe supply of water for the public, and proposals have been made, primarily in other jurisdictions, to re- quire that maps indicating the location of water supplies be kept confidential. That kind of proposal is, in my view, overly broad and largely unenforceable. I can see the Hudson River from my office, and Reservoir Road is likely close to a reservoir. Maps that can purchased [sic] at any number of locations contain information of that nature. On the other hand, if a map is so detailed that it indicates the location of certain valves, places where terrorists or others could deposit poisons or chemical or biological agents, perhaps it could be contended that there is a rea- sonable likelihood that disclosure, due to the degree of de- tail, could endanger life or safety.419 The committee went on to note that while informa- tion about specific deployment of security personnel might arguably endanger life or safety, information about the number of participating officers and their functions was too minimally detailed to be likely to en- danger life or safety.420 416 Id. at 7–8. 417 Id. at 10. The OAG cited 6 U.S.C. § 133(a)(1)(E) as an ex- ample of a federal statute precluding disclosure of information despite the PIA’s general presumption of disclosure. 418 Freedom of Information Law, N.Y. PUB. OFF. § 87(2)(f). 419 See N.Y.S. Committee on Open Government opinion, FOIL-AO-16715, Aug. 6, 2007, www.dos.state.ny.us/coog/ftext/f16715.htm (accessed Mar. 31, 2009). 420 Id. 2. Vulnerability Assessments As discussed above, Maryland’s Public Information Act allows a record custodian to deny inspection of part of a specified public record based on a belief that inspec- tion would be contrary to the public interest. Specified records include response procedures or plans that would reveal vulnerability assessments and building plans, blueprints, schematic drawings, dia- grams, operational manuals, or other records of airports and other mass transit facilities…the disclosure of which would reveal the building’s, structure’s or facility’s inter- nal layout, specific location, life, safety, and support sys- tems, structural elements, surveillance techniques, alarm or security systems or technologies, operational and transportation plans or protocols, or personnel deploy- ments. However, inspection may only be denied to the extent that inspection would jeopardize facility security, facili- tate planning of a terrorist attack, or endanger life or physical safety.421 Texas law more broadly protects vulnerability as- sessments. Texas’s Public Information Act excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial deci- sion.”422 The Texas Homeland Security Act in turn makes information confidential if it (1) is collected, assembled, or maintained by or for a gov- ernmental entity for the purpose of preventing, detecting, or investigating an act of terrorism or related criminal ac- tivity; and (2) relates to an assessment by or for a governmental en- tity, or an assessment that is maintained by a govern- mental entity, of the risk or vulnerability of persons or property, including critical infrastructure, to an act of terrorism or related criminal activity.423 The Texas Attorney General has advised that merely because information relates to security concerns does not make it confidential. Rather, if a governmental body asserts information is excepted from disclosure under the Public Information Act due to the security provi- sions of the Homeland Security Act, the body must ade- quately explain how the requested information falls within the scope of the claimed provision. The Attorney General found that information described as being used to “evaluate information about potential threat ele- ments in [various Texas] jurisdictions” and “determine equipment, training, exercise, planning, organizational and technical needs” and forwarded to DHS to deter- mine funding needs appropriately falls within the scope 421 MD. CODE, § 10-618(b), Permissible denials: Denial of in- spection. 422 TEX. GOV’T CODE, § 552.101, Exception: Confidential In- formation, www.statutes.legis.state.tx.us/SOTWDocs/GV/pdf/GV.552.pdf. 423 TEX. GOV’T CODE, § 418.177, Confidentiality of Certain Information Relating to Risk or Vulnerability Assessment, www.statutes.legis.state.tx.us/SOTWDocs/GV/pdf/GV.418.pdf.

40 of the cited provision of the Homeland Security Act; such information was required to be withheld.424 3. Other As noted above, Maryland covers plans of mass tran- sit facilities under its security exemption. Virginia also covers such plans to the extent they reveal the location or operation of “security equipment and systems, eleva- tors, ventilation, fire protection, emergency, electrical, telecommunications or utility equipment and systems of any public building” or “operational and transportation plans or protocols, to the extent such disclosure would jeopardize the security of any governmental facility, building or structure or the safety of persons using such facility, building or structure.”425 The Virginia provision also covers training manuals, the disclosure of which would jeopardize public safety as specified under the statute.426 Under the Virginia statute the record custo- dian need not, but may, disclose such information, ex- cept where prohibited by law. Both Florida and Missouri exempt plans for security systems from mandatory disclosure.427 The Florida stat- ute includes threat assessments and threat response plans in its definition of “security system plan.” How- ever, the Missouri statute specifies: “Records related to the procurement of or expenditures relating to security systems purchased with public funds shall be open.”428 C. Public Records Laws—Other Exemptions That May Protect SSI and Other Security Information As noted in the discussion of the Federal FOIA, su- pra, a number of sunshine act exemptions that are not focused on security may be used to protect security in- formation. These include general public interest exemp- tions, exemptions mandated by other statutes, trade secret and commercial information exemptions, and intra/inter agency memoranda exemptions. 1. General Public Interest Hawaii’s Uniform Information Practices Act contains an exception for information whose disclosure would 424 Op. Tex. Att’y Gen. No. GA-7401 (2005), www.oag.state.tx.us/opinions/openrecords/50abbott/orl/2005/pd f/or200507401.pdf. 425 VA. CODE, § 2.2-3705.2, Exclusions to application of chap- ter; records relating to public safety, Exclusions 4 and 6, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-3705.2. 426 E.g., VA. CODE, § 2.2-3705.2, Exclusions to application of chapter; records relating to public safety, Exclusions 4 and 6. 427 FLA. STAT. § 119.071(3)(a)2: A “security system plan” is exempt and confidential under the Florida public records law, www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Sta tute&Search_String=&URL=Ch0119/SEC071.HTM&Title=- %3E2008-%3ECh0119-%3ESection%20071#0119.071; MO. REV. STAT. § 610.021(19), http://ago.mo.gov/sunshinelaw/chapter610.htm#header7. 428 MO. REV. STAT. § 610.021(19)(a), http://ago.mo.gov/sunshinelaw/chapter610.htm#header7. frustrate a legitimate government function.429 In 2007 Hawaii’s Office of Information Practices (OIP) inter- preted this as justifying the nondisclosure of informa- tion about the physical security of Hawaii’s critical en- ergy infrastructure submitted by private companies to Hawaii’s Department of Business, Economic Develop- ment and Tourism (DBEDT).430 OIP examined the function of the agency in question, which was to ensure Hawaii’s energy security. DBEDT argued that disclosing the requested information would expose the infrastructure to physical damage, thereby impairing its physical security and thus frustrating DBEDT’s function. OIP looked to the use of FOIA’s na- tional security exemption to protect information about the physical security of nuclear power facilities, finding DBEDT’s argument to be analogous. OIP found it un- necessary for information to be classified to be withheld at the state level. Rather “where an agency seeks to withhold information in the interest of public security, the agency must show that public disclosure of the in- formation could reasonably be expected to cause dam- age to public security.” In contrast, in Progressive Animal Welfare Soc. v. University of Washington (PAWS),431 a seminal Wash- ington State public records case, Washington’s Supreme Court took the position that the state legislature had rejected the idea of a general “vital government func- tions” exemption.432 The court also rejected the argu- ment that Revised Code of Washington 42.17.330 pro- vides such a general exemption.433 California’s Public Records Act explicitly allows a government agency to withhold records “if it can dem- onstrate that, on the facts of a particular case, the pub- lic interest served by withholding the records clearly outweighs the public interest served by disclosure.” 434 Under this exemption, there is a case-by-case balancing process “with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.”435 California case law directs courts to look at the nature of the government activity being examined and how well the requested information would illuminate that activity. In County of Santa Clara, a case involving a request for the county’s GIS Basemap, the court found that 429 Uniform Information Practices Act, HAW. REV. STAT. § 92F-13(3) (1993), www.state.hi.us/oip/uipa.html#92F13. 430 OIP Op. Ltr. No. 07-05, www.state.hi.us/oip/opinionletters/opinion%2007-05.pdf (accessed June 4, 2009). 431 Progressive Animal Welfare Soc. v. Univ. of Wash., 125 Wash. 2d 243, 261, 884 P.2d 592, 601 (Wash. 1994), citing Laws of 1987, ch. 403, § 1, at 1546. 432 Id. at 258–59, citing Laws of 1987, ch. 403, § 1, at 1546. 433 Id. at 260–61. 434 170 Cal. App. 4th 1301, 1321, 89 Cal. Rptr. 3d 374, 388 (citation omitted) (discussing § 6255 of CPRA). 435 Id., citing Michaelis, Montanari & Johnson v. Superior Court (2006), 38 Cal. 4th 1065, 1071, 44 Cal. Rptr. 3d 663, 136 P.3d 194.

41 there was a significant public interest in disclosure of the government activities at issue; the requested GIS Basemap would illuminate those activities; and the availability of other means to obtain the information— particularly given the lack of privacy concerns—did not prevent requiring disclosure under the Public Records Act. Finding that the public interest in disclosure was neither hypothetical nor minimal, the court then as- sessed the public interest in nondisclosure. The court rejected the county’s argument that the GIS Basemap contained sensitive information that is not publicly available and that could not be easily segregated. The example cited by the county was the exact location of Hetch Hetchy reservoir components, which could be combined with publicly available information to allow terrorists to pinpoint the water lines and attack the San Francisco water system. The plaintiff’s GIS expert, however, testified that in fact the GIS Basemap showed the water easements, not the sensitive water line loca- tions, and that even the easement information could be easily segregated. The trial court had found that some of the information in the record requested had nothing to do with security, and that that information could not be “cloaked with the protection of CII/PCII simply by submission to OHS [the California Office of Homeland Security].” The appellate court agreed.436 States may also recognize a public interest exemp- tion as a matter of common law. Wisconsin, for exam- ple, recognizes public interest exemptions, including a public interest balancing test that has been incorpo- rated into state statute.437 Attorney work product is an- other example of a common law exemption,438 although one that may be incorporated into statutory exemptions as well.439 2. When Mandated by Federal or Other State Statutes Most state public records statutes have provisions analogous to Federal Exemption 3, requiring that in- formation be withheld if mandated by federal or other state statutes. 440 Such “other statutes” exemptions may 436 Id. The court also held that the CIIA does not apply to submitters of PCII, so that the CIIA does not preempt requests for information made to the submitting agency under the CPRA. Id. at 1316–19, 385–87. See II.B.2, Federal Agencies, supra this report. 437 Wisc. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 775–78, 546 N.W.2d 143, 146–47 (1996). 438 Seifert v. Sch. Dist. of Sheboygan Falls, 2007 WI App 207, 740 N.W.2d 177, 187 (Ct. App. Wis. 2007). 439 For example, the Washington statute exempts qualifying attorney work product from disclosure as an “other statute” exemption, because the attorney-client privilege statute ex- empts such information from disclosure. Summary of exemp- tions, WAC 44-14-06002, http://apps.leg.wa.gov/WAC/default.aspx?cite=44-14-06002. 440 Comments of the Silha Center for the Study of Media Eth- ics and Law on TSA Interim Final Rule on Protection of Sensi- tive Security Information, July 16, 2004, TSA-2003-15569- 0013, require that the federal statute relied upon for exemp- tion contain an explicit nondisclosure mandate;.441 that requirement is met by the federal law protecting SSI. Generally if the “other statutes” exemption applies, the state agency must withhold the covered information.442 Some states already exempt material that would constitute Federal SSI, but only if release would cause or be reasonably expected to cause actual harm.443 To the extent that the Federal SSI provision automatically designates certain material as SSI without an actual showing of harm, application of “other statutes” exemp- tions allows the Federal SSI requirement to effectively amend state law.444 Similarly, if states with expansive disclosure requirements give effect to laws in other states with less expansive disclosure requirements, a state may reduce presumption of openness under its own law.445 State courts have found that state public records law requirements trump “other statutes” disclosure re- quirements. For example, the Washington State court addressed an “other statutes” exemption in PAWS, su- pra. Although ultimately finding that the exemption applied on the facts in the case, the court outlined legal principles that suggested under some circumstances public records requirements would govern. The court explained that the “other statutes” exemption is an ex- emption to the redaction [segregation] requirement for www.regulations.gov/search/Regs/home.html#documentDetail? R=0900006480313ddb (accessed Sept. 10, 2009). 441 E.g., Barry v. Wash. Post, 529 A.2d 319, 322 (1987) (ex- emption under federal statute must explicitly require nondis- closure); Better Gov’t Ass’n v. Blagojevich, 386 Ill. App. 3d 808, 899 N.E.2d 382 (2008) (proposed disclosure must be specifically prohibited by federal or state statute or regulations in order for 5 ILL. COMP. STAT. 140/1 to apply). 442 E.g., Maryland Public Information Act, MD. CODE ANN. § 10-615, Required Denials—Other Law, www.oag.state.md.us/opengov/Appendix_C.pdf. 443 E.g., IOWA CODE § 22.7, Confidential Records. 50 [secu- rity procedures, emergency preparedness, including vulnerabil- ity assessments], http://coolice.legis.state.ia.us/Cool- ICE/default.asp?category=billinfo&service=IowaCode&ga=83# 22.7. 444 See Comments of the Silha Center for the Study of Media Ethics and Law on TSA Interim Final Rule on Protection of Sensitive Security Information, July 16, 2004, at 6, citing ex- emptions in ALA. CODE § 36-12-40 (1991); CONN. GEN. STAT. § 1-210(b)(19) (2003); MD. STATE GOV’T CODE ANN. § 10-613 (2003); MINN. STAT. § 13.03(1) (2003); MISS. CODE ANN. § 25- 61-11 (2004); W. VA. CODE § 29B-1-4 (2003); WASH. REV. CODE § 42.17.260 (2004). 445 [Florida] Commission on Open Government Reform, Fi- nal Report, Jan. 2009, at 102–05. Because of the potential dilu- tion of Florida’s presumption of openness, the Commission recommended against expanding the non-Florida source ex- emption for criminal intelligence information or criminal inves- tigative information held by a non-Florida criminal justice agency (FLA. STAT. § 119.071(2)(b)) to include information rele- vant to promoting domestic security efforts. Florida Commis- sion on Open Government Reform, Final Report, Jan. 2009, at 158–59, www.flgov.com/pdfs/og_2009finalreport.pdf.

42 disclosing any nonexempt portions of records. The court stated that under Washington law, the public records act incorporates those other statutes that exempt or prohibit disclosure, but only if the statutes in question “mesh” with the public records act; in the event of a conflict, the provisions of the public record act govern. Furthermore, the “other statutes” exemption only ap- plies if the other statute explicitly identifies the exemp- tions in question.446 The Ohio Supreme Court directly addressed the question of how to resolve a conflict between the state public records requirement of disclosure and a federal privacy statute.447 The Enquirer case involved a request by a newspaper for lead contamination notices issued to property owners. The court assumed for the sake of argument that the reports contained protected health information and that the Cincinnati Health Depart- ment (the withholding agency) was a covered entity under the Federal Health Insurance Portability and Accountability Act (HIPAA). Nonetheless, the court concluded that the federal statute did not supersede state disclosure requirements because the state public records disclosure mandate met the “required by law” exception to HIPAA’s nondisclosure requirements. Where the effect of an “other statutes” provision is to prohibit the disclosure of information that would oth- erwise be disclosed under state law, such provisions do not necessarily eliminate the need to follow the proce- dural requirements of the state public records law. For example, the Virginia Supreme Court addressed the question of whether federal airport security laws and regulations preempted the requirements of the Virginia FOIA in Fenter v. Norfolk Airport Authority.448 In Fenter, the plaintiff had asked the Norfolk Airport Authority for a copy of any federal or Virginia statute or regulation that authorized vehicle searches at the air- port.449 The plaintiff made an initial request on March 8, 2006; within several days the authority notified the plaintiff that his request had been forwarded to counsel for response. On March 21, 2006, plaintiff made a sec- ond request for “the history or circumstances relating to the erection of” the airport search signs; the Authority’s counsel responded within a week advising plaintiff that the authority had contacted TSA and would get back to him when it had heard from TSA. On May 6, 2006, plaintiff requested copies of any records of the corre- spondence between the authority and TSA regarding 446 Progressive Animal Welfare Society, 125 Wash. 2d 243. 447 State ex rel. Enquirer v. Daniels, 108 Ohio St. 3d 518, 2006 Ohio 1215, 844 N.E.2d 1181 (2006). 448 274 Va. 524, 649 S.E.2d 704 (Va. 2007). 449 The specific request was: There are signs on the access roads to the Norfolk Interna- tional Airport stating that “All vehicles entering airport are sub- ject to search.” Please provide me a copy of any Federal or Vir- ginia statute or regulation authorizing the Airport Authority to search any vehicle on airport property, outside the Federal “sterile area,” without prior probable cause or a valid search warrant issued by a Federal or Virginia court. Id. at 706. the signs and plaintiff’s requests for information; within 2 days the authority’s executive director responded that all further requests should be directed to counsel, who was copied on the response. Having received no further response and having been advised by the Virginia FOIA Advisory Council that the authority had not met Vir- ginia FOIA’s procedural requirements, plaintiff filed a complaint on July 25, 2006. The Fenter court reviewed the applicable state re- quirements concerning general availability of records, the requirement to narrowly construe exemptions, the public body’s burden of proof on exemptions, and the procedural requirements under Virginia’s FOIA.450 The court found that the authority’s immediate responses to the plaintiff’s second and third requests for information did not meet the Virginia FOIA’s procedural require- ments. Moreover, once plaintiff filed suit, the authority eventually produced nonsensitive, nonexempt material related to the second and third requests for informa- tion. The court rejected the authority’s preemption ar- gument and agreed with the plaintiff that federal law and regulations did not preempt the procedural re- quirements of state law or the need to produce docu- ments that were not SSI. Furthermore, the court found 450 Id. at 707–708. At the time the complaint was filed the Virginia Freedom of Information Act, Code § 2.2-3704(B) pro- vided: Any public body that is subject to [the Act] and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, make one of the following responses: 1. The requested records will be provided to the requester. 2. The requested records will be entirely withheld because their release is prohibited by law or the custodian has exercised his discretion to withhold the records in accordance with [the Act]. Such response shall (i) be in writing, (ii) identify with rea- sonable particularity the volume and subject matter of withheld records, and (iii) cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. 3. The requested records will be provided in part and with- held in part because the release of part of the records is prohib- ited by law or the custodian has exercised his discretion to withhold a portion of the records in accordance with [the Act]. Such response shall (i) be in writing, (ii) identify with reason- able particularity the subject matter of withheld portions, and (iii) cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. When a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record. 4. It is not practically possible to provide the requested re- cords or to determine whether they are available within the five- work-day period. Such response shall be in writing and specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the three preceding responses. The court noted that the subsequent amendment of this provi- sion did not make substantive changes. Id. at 708.

43 the plaintiff entitled to reasonable costs and attorney fees.451 3. Trade Secrets/Commercial Information Exemptions for trade secrets/commercial information should already be familiar to transit agencies. Some of the recommended procedures for this exemption may also apply—directly or with some modification—to se- curity information, either that provided by the transit agency to bidders and contractors during the procure- ment process or information developed by bidders and contractors. For example, FTA’s Best Practices Pro- curement Manual discusses the potential conflict be- tween a vendor’s trade secret interest and the transit agency’s obligations under state sunshine laws. FTA suggests four best practices to resolve this conflict: re- turning the confidential data once the procurement is completed; inspecting the data off site; allowing a third party to evaluate the data (although an agent of the public agency may also be subject to public records re- quirements); and using contract provisions that grant/require the trade secret holder to defend the agency against actions seeking public disclosure.452 State law may address directly limitations on disclo- sure of proprietary information during the bidding proc- ess.453 4. Inter-Agency/Intra-Agency Memoranda454 Security information contained in inter-agency or in- tra-agency memoranda may be exempt from disclosure, generally under the deliberative process privilege. This protection is more likely to extend to records relating to contract deliberations than to contract documents themselves. The typical limitations of this privilege are illustrated in the Washington Supreme Court’s discus- sion in the PAWS case, supra. The court noted that the deliberative process exemption under the Washington public records act does not apply to all documents in which opinions are expressed, but only those documents in which the opinions relate to policy formulation and the disclosure of which would expose the deliberative process, as opposed to exposing the facts on which the deliberation is based. The court set forth this standard: In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recom- mendations of subordinates expressed as part of a delib- erative process; that disclosure would be injurious to the deliberative or consultative function of the process; that 451 Id. at 709. 452 See, e.g., BPPM, 8.2.4.1 Disclosure of Trade Secrets, at 32–33. 453 Nevada: NEV. REV. STAT. 332.061, Limitation on disclo- sure of proprietary information and of bid containing provision requiring negotiation or evaluation. [Chapter 32: Local Gov- ernment Purchasing]; NEV. REV. STAT. 332.025, Other terms defined, [Includes definition of proprietary information] www.leg.state.nv.us/NRS/NRS-332.html#NRS332Sec025. 454 E.g., MD. CODE, § 10-618(b), Permissible denials: Inter- agency and intra-agency documents. disclosure would inhibit the flow of recommendations, ob- servations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a de- cision is based.455 In addition, under Washington State law, once the policies or recommendations are implemented, the in- formation is no longer protected. The exemption is not limited to intra-agency documents prepared by a gov- ernment agency. For example, in addition to applying this exemption in PAWS to documents prepared by nongovernmental scientists, a Washington appellate court held the exemption covered negotiation notes of members of a police union.456 D. Records Management Laws Often the purview of the Secretary of State,457 re- cords management requirements may also be adminis- tered by a public records commission,458 a local records board,459 the state library/archives,460 or some other en- tity. These agencies often offer guidance for local agen- cies concerning record retention and record destruction requirements.461 State law is likely to cover public tran- sit agencies. Such laws may cover contract agencies as well.462 The length of time that local agencies are required to maintain bid documents may vary from as short a pe- riod as 2 years to as long as 10 years, depending in part 455 Progressive Animal Welfare Society, 125 Wash. 2d 256. 456 Am. Civil Liberties Union of Wash. v. City of Seattle, 121 Wash. App. 544, 89 P.3d 295 (Wash. App. Div. 1 2004). 457 E.g., Washington State, www.secstate.wa.gov/archives/RecordsManagement/. 458 E.g., New Mexico Commission of Public Records, www.nmcpr.state.nm.us/commiss/commission_hm.htm. See N.M. STAT. ANN. ch. 14, art. 3, Public Records, www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main- h.htm&2.0. 459 E.g., The Missouri Secretary of State appoints a local re- cords board charged with developing record retention schedules for local governments and agencies. MO. REV. STAT. § 109.255, www.moga.mo.gov/statutes/C100-199/1090000255. HTM. Heads of local agencies are then charged with submit- ting proposed schedules, consistent with the local records board standards, for various types of records under their control. MO. REV. STAT. § 109.241, www.moga.mo.gov/statutes/C100- 199/1090000241.HTM. 460 Texas State Library and Archives Commission, Preserva- tion and Management of State Records and Other Historical Resources Government Code, ch. 441, subch. L, www.tsl.state.tx.us/slrm/recordspubs/stbull04.html#pres. 461 E.g., Alabama: Government Records Division, Depart- ment of Archives and History, offers records management as- sistance to local officials, www.archives.state.al.us/officials/rec- center.html; Florida: State Library and Archives offers services for records managers, http://dlis.dos.state.fl.us/index_RecordsManagers.cfm. 462 See, e.g., Circular Letter 97-07-SCA: Administration of Public Records of Privatized County and Local Functions and Services, www.state.nj.us/infobank/circular/cir9707c.htm.

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TRB‘s Transit Cooperative Research Program (TCRP) Legal Research Digest 32: Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements highlights the legal requirements that are relevant to the transit procurement process of balancing the competing needs of open government and public security. The report explores federal and state requirements concerning record retention and disclosure, as well as practices transit agencies have adopted to meet their responsibilities in balancing these competing public policy interests.

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