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the plaintiff entitled to reasonable costs and attorney disclosure would inhibit the flow of recommendations, ob-
fees.451 servations, and opinions; and finally, that the materials
covered by the exemption reflect policy recommendations
3. Trade Secrets/Commercial Information and opinions and not the raw factual data on which a de-
455
cision is based.
Exemptions for trade secrets/commercial information
should already be familiar to transit agencies. Some of In addition, under Washington State law, once the
the recommended procedures for this exemption may policies or recommendations are implemented, the in-
also apply--directly or with some modification--to se- formation is no longer protected. The exemption is not
curity information, either that provided by the transit limited to intra-agency documents prepared by a gov-
agency to bidders and contractors during the procure- ernment agency. For example, in addition to applying
ment process or information developed by bidders and this exemption in PAWS to documents prepared by
contractors. For example, FTA's Best Practices Pro- nongovernmental scientists, a Washington appellate
curement Manual discusses the potential conflict be- court held the exemption covered negotiation notes of
tween a vendor's trade secret interest and the transit members of a police union.456
agency's obligations under state sunshine laws. FTA
D. Records Management Laws
suggests four best practices to resolve this conflict: re-
turning the confidential data once the procurement is Often the purview of the Secretary of State,457 re-
completed; inspecting the data off site; allowing a third cords management requirements may also be adminis-
party to evaluate the data (although an agent of the tered by a public records commission,458 a local records
459 460
public agency may also be subject to public records re- board, the state library/archives, or some other en-
quirements); and using contract provisions that tity. These agencies often offer guidance for local agen-
grant/require the trade secret holder to defend the cies concerning record retention and record destruction
agency against actions seeking public disclosure.452 requirements.461 State law is likely to cover public tran-
State law may address directly limitations on disclo- sit agencies. Such laws may cover contract agencies as
sure of proprietary information during the bidding proc- well.462
ess.
453
The length of time that local agencies are required to
maintain bid documents may vary from as short a pe-
4. Inter-Agency/Intra-Agency Memoranda454 riod as 2 years to as long as 10 years, depending in part
Security information contained in inter-agency or in-
tra-agency memoranda may be exempt from disclosure, 455
Progressive Animal Welfare Society, 125 Wash. 2d 256.
generally under the deliberative process privilege. This 456
protection is more likely to extend to records relating to Am. Civil Liberties Union of Wash. v. City of Seattle, 121
Wash. App. 544, 89 P.3d 295 (Wash. App. Div. 1 2004).
contract deliberations than to contract documents 457
themselves. The typical limitations of this privilege are E.g., Washington State,
www.secstate.wa.gov/archives/RecordsManagement/.
illustrated in the Washington Supreme Court's discus- 458
sion in the PAWS case, supra. The court noted that the E.g., New Mexico Commission of Public Records,
www.nmcpr.state.nm.us/commiss/commission_hm.htm. See
deliberative process exemption under the Washington
N.M. STAT. ANN. ch. 14, art. 3, Public Records,
public records act does not apply to all documents in www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-
which opinions are expressed, but only those documents h.htm&2.0.
in which the opinions relate to policy formulation and 459
E.g., The Missouri Secretary of State appoints a local re-
the disclosure of which would expose the deliberative cords board charged with developing record retention schedules
process, as opposed to exposing the facts on which the for local governments and agencies. MO. REV. STAT.
deliberation is based. The court set forth this standard: § 109.255, www.moga.mo.gov/statutes/C100-199/1090000255.
In order to rely on this exemption, an agency must show HTM. Heads of local agencies are then charged with submit-
that the records contain predecisional opinions or recom- ting proposed schedules, consistent with the local records board
mendations of subordinates expressed as part of a delib- standards, for various types of records under their control. MO.
erative process; that disclosure would be injurious to the REV. STAT. § 109.241, www.moga.mo.gov/statutes/C100-
deliberative or consultative function of the process; that 199/1090000241.HTM.
460
Texas State Library and Archives Commission, Preserva-
tion and Management of State Records and Other Historical
451
Id. at 709. Resources Government Code, ch. 441, subch. L,
452
See, e.g., BPPM, 8.2.4.1 Disclosure of Trade Secrets, at www.tsl.state.tx.us/slrm/recordspubs/stbull04.html#pres.
3233. 461
E.g., Alabama: Government Records Division, Depart-
453
Nevada: NEV. REV. STAT. 332.061, Limitation on disclo- ment of Archives and History, offers records management as-
sure of proprietary information and of bid containing provision sistance to local officials, www.archives.state.al.us/officials/rec-
requiring negotiation or evaluation. [Chapter 32: Local Gov- center.html; Florida: State Library and Archives offers services
ernment Purchasing]; NEV. REV. STAT. 332.025, Other terms for records managers,
defined, [Includes definition of proprietary information] http://dlis.dos.state.fl.us/index_RecordsManagers.cfm.
www.leg.state.nv.us/NRS/NRS-332.html#NRS332Sec025. 462
See, e.g., Circular Letter 97-07-SCA: Administration of
454
E.g., MD. CODE, § 10-618(b), Permissible denials: Inter- Public Records of Privatized County and Local Functions and
agency and intra-agency documents. Services, www.state.nj.us/infobank/circular/cir9707c.htm.
