A key benefit of public-private partnerships is the introduction of innovative solutions to technical and financial problems limiting the implementation of desirable transportation projects. When considering a proposal for a public-private partnership, the Federal government must have fairly detailed information about the proposal, the business and fiscal capability of the proponent, and the financial plan supporting the arrangement. Negotiations often require revelation of information about corporate finances, strategic business plans, and unique design and technology.[463] Often, this information will include proprietary information that the proponent may not wish to disclose publicly. Certainly, if a project is bid competitively before proprietary data is protected, private sponsors may choose not to develop truly innovative proposals. [464] Thus, protection of proprietary ideas, particularly at the stage where proposals are still being considered for approval, can be very important.[465] This section discusses how the Freedom of Information Act (FOIA) operates with respect to proprietary records that the Federal government may need to evaluate within public-private partnership proposals.
FOIA requires Federal agencies to disclose agency records upon request, by any person for any reason, unless the requested records fall under one of nine (9) applicable statutory exemptions.[466] The requestor need not state why the records are being sought. The determination of the applicability of a FOIA exemption is up to an agency's discretion and responses to FOIA requests are generally determined by an agency on a case-by-case basis. If the agency believes that the material is within the ambit of an exemption and concludes that it is in the agency's interest, the agency may deny a request for the information under FOIA.
One of the nine exemptions covers trade secrets and commercial or financial information that is obtained from a person and is privileged or confidential ("confidential business information").[467] In addition, the courts have ruled that the Trade Secrets Act (18 U.S.C. 1905) is co-extensive with the FOIA exemption for confidential business information. Therefore, Federal agencies have an additional basis for withholding trade secrets that form part of a private sector proposal. If, in response to a FOIA request, the agency determines that it may be required to release material submitted that may or may not fall under the definition of confidential business information, the submitter will be notified prior to the agency's final determination and given an opportunity to specify why these records should not be released. Pursuant to Executive Order 12600, this procedure is universally used across the Federal government and is an integral part of the U.S. DOT FOIA regulations.[468]
Similar concerns exist with respect to State laws. All 50 States also have public records laws, which allow members of the public (including non-residents) to obtain documents and other public records from State and local government bodies. State public records laws are not identical to FOIA nor are State court interpretations of similar language in State statutes necessarily the same as Federal court interpretation of FOIA (though many were modeled upon the Federal FOIA).[469] Many of these laws are similar to FOIA, but distinctions may arise in regard to the breadth of coverage of a disclosure exemption.[470] Virginia, Oregon, and Florida are among the States that have taken specific legislative action to ensure proprietary information submitted as part of the creation of a public-private partnership is protected from public disclosure.