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5 RECONCILING SECURITY, DISCLOSURE, AND RECORD-RETENTION REQUIREMENTS IN TRANSIT PROCUREMENTS By Jocelyn K. Waite, Esq. Waite & Associates, Reno, Nevada I. INTRODUCTION enough information to allow transit agencies to more easily research the requirements in their specific juris- dictions. The digest is also intended to provide transit A. Statement of the Problem agencies a basis for assessing issues they may wish to Public transportation has been the target of planned consider as they develop policies for managing security and actual terrorist attacks. Part of public transit agen- information throughout the procurement process. In- cies' security efforts must include taking steps to ensure formation in the digest is current as of October 2009. that information that would facilitate such attacks does not become readily available. At the same time, there is 2. Focus also a clear, well-established public interest in ensuring The balance of the Introduction presents the histori- that publicly-funded projects are transparent and that cal background of threats to public transportation and information to provide oversight is publicly available. of public records requirements, including in both cases This tension plays out in the area of procurement and the context of actual attacks, such as the events of Sep- contract management. Material in bid solicitations, re- tember 11, 2001 (9/11). The potential relationship be- sponses, and contracts that contains potentially harm- tween competitive procurement documents and disclo- ful information not otherwise available must be kept sure requirements is also raised. The main body of the secure, while safeguarding the public interest in open digest examines federal and state records management government. Accordingly, public transit agencies must requirements to the extent that--in the context of com- balance the competing legal and public policy interests petitive bidding--legislation and regulations require manifested by requirements for full disclosure of the transit agencies to keep information from public disclo- public's business on the one hand and security concerns sure, allow transit agencies to keep information from on the other. public disclosure, and require transit agencies to dis- close information. The digest includes citations to all 1. Purpose state freedom of information laws (Appendix B), secu- In managing competitive security procurements-- rity exemptions (Appendix C), and state records man- and in some circumstances nonsecurity procurements agement laws (Appendix D). As is the case throughout with security-related elements--agency personnel re- the digest, links to citations are provided for conven- sponsible for developing and managing procurements ience; transit agencies should verify statutory language must be cognizant of disclosure requirements under from official sources. federal and state public records laws, as well as the The digest also discusses several examples of how obligation to keep certain information with security public transit agencies in fact manage security informa- implications confidential. These competing needs may tion in the procurement process in light of the agencies' influence the structure of procurements. Confidentiality obligations regarding disclosure of public records. Due requirements come into play not only in the context of to the sensitivity of this information, not all agencies responding to requests for information, but in maintain- have been identified. After reviewing federal and state ing adequate records management systems. legal requirements, the report presents issues to con- The purpose of this digest is to provide government sider in reviewing agency practices concerning the and private attorneys who specialize in procurement management of security information during the com- and contract management, as well as other attorneys petitive procurement process. and management personnel, an overview of the legal requirements that are relevant to the process of balanc- 3. Scope ing the competing needs of open government and public The digest does not focus on requirements concern- security. In particular the digest is intended to provide ing information sharing between government agencies, these practitioners information about federal and state except to the extent that such requirements are rele- requirements concerning record retention and disclo- vant to the public disclosure issue. However, the discus- sure, as well as practices transit agencies have adopted sion of federal and state security exemptions should be to meet their responsibilities in balancing these compet- useful for transit agencies interesting in understanding ing public policy interests. Particularly in terms of the scope of their ability to share security information state requirements, the digest is intended to provide without incurring an obligation to disclose that infor-