2006 Code of Virginia § 2.2-3705.6 - Exclusions to application of chapter; proprietary records and trade secrets

2.2-3705.6. Exclusions to application of chapter; proprietary records andtrade secrets.

The following records are excluded from the provisions of this chapter butmay be disclosed by the custodian in his discretion, except where suchdisclosure is prohibited by law:

1. Proprietary information gathered by or for the Virginia Port Authority asprovided in 62.1-132.4 or 62.1-134.1.

2. Financial statements not publicly available filed with applications forindustrial development financings in accordance with Chapter 49 ( 15.2-4900et seq.) of Title 15.2.

3. Confidential proprietary records, voluntarily provided by private businesspursuant to a promise of confidentiality from the Department of BusinessAssistance, the Virginia Economic Development Partnership, the VirginiaTourism Authority, the Tobacco Indemnification and Community RevitalizationCommission, or local or regional industrial or economic developmentauthorities or organizations, used by the Department, the Partnership, theAuthority, or such entities for business, trade and tourism development; andmemoranda, working papers or other records related to businesses that areconsidering locating or expanding in Virginia, prepared by such entities,where competition or bargaining is involved and where, if such records aremade public, the financial interest of the governmental unit would beadversely affected.

4. Information that was filed as confidential under the Toxic SubstancesInformation Act ( 32.1-239 et seq.), as such Act existed prior to July 1,1992.

5. Fisheries data that would permit identification of any person or vessel,except when required by court order as specified in 28.2-204.

6. Confidential financial statements, balance sheets, trade secrets, andrevenue and cost projections provided to the Department of Rail and PublicTransportation, provided such information is exempt under the federal Freedomof Information Act or the federal Interstate Commerce Act or other lawsadministered by the Surface Transportation Board or the Federal RailroadAdministration with respect to data provided in confidence to the SurfaceTransportation Board and the Federal Railroad Administration.

7. Confidential proprietary records related to inventory and sales,voluntarily provided by private energy suppliers to the Department of Mines,Minerals and Energy, used by that Department for energy contingency planningpurposes or for developing consolidated statistical information on energysupplies.

8. Confidential proprietary information furnished to the Board of MedicalAssistance Services or the Medicaid Prior Authorization Advisory Committeepursuant to Article 4 ( 32.1-331.12 et seq.) of Chapter 10 of Title 32.1.

9. Proprietary, commercial or financial information, balance sheets, tradesecrets, and revenue and cost projections provided by a privatetransportation business to the Virginia Department of Transportation and theDepartment of Rail and Public Transportation for the purpose of conductingtransportation studies needed to obtain grants or other financial assistanceunder the Transportation Equity Act for the 21st Century (P.L. 105-178) fortransportation projects, provided such information is exempt under thefederal Freedom of Information Act or the federal Interstate Commerce Act orother laws administered by the Surface Transportation Board or the FederalRailroad Administration with respect to data provided in confidence to theSurface Transportation Board and the Federal Railroad Administration.However, the exemption provided by this subdivision shall not apply to anywholly owned subsidiary of a public body.

10. Confidential information designated as provided in subsection D of 2.2-4342 as trade secrets or proprietary information by any person who hassubmitted to a public body an application for prequalification to bid onpublic construction projects in accordance with subsection B of 2.2-4317.

11. (Effective until July 1, 2007) Memoranda, staff evaluations, or otherrecords prepared by or for the responsible public entity for the evaluationand negotiation of proposals filed under the Public-Private TransportationAct of 1995 ( 56-556 et seq.) or the Public Private Education Facilities andInfrastructure Act of 2002 ( 56-575.1 et seq.), where (a) if such recordswere made public prior to their disclosure as required by 56-573.1:1 or56-575.17, the financial interest or bargaining position of the public orprivate entity would be adversely affected, and (b) the basis for thedetermination required in clause (a) is documented in writing by theresponsible public entity; and records provided by a private entity to aresponsible public entity, affected jurisdiction, or affected localjurisdiction pursuant to the provisions of the Public-Private TransportationAct of 1995 ( 56-556 et seq.) or the Public-Private Education Facilities andInfrastructure Act of 2002 ( 56-575.1 et seq.), to the extent that suchrecords contain (i) trade secrets of the private entity as defined in theUniform Trade Secrets Act ( 59.1-336 et seq.); (ii) financial records of theprivate entity, including balance sheets and financial statements, that arenot generally available to the public through regulatory disclosure orotherwise; or (iii) other information submitted by the private entity, where,if the records were made public prior to the execution of an interimagreement or a comprehensive agreement, the financial interest or bargainingposition of the public or private entity would be adversely affected.

In order for the records specified in clauses (i), (ii) and (iii) to beexcluded from the provisions of this chapter, the private entity shall make awritten request to the responsible public entity:

1. Invoking such exclusion upon submission of the data or other materials forwhich protection from disclosure is sought;

2. Identifying with specificity the data or other materials for whichprotection is sought; and

3. Stating the reasons why protection is necessary.

The responsible public entity shall determine whether the requested exclusionfrom disclosure is necessary to protect the trade secrets or financialrecords of the private entity. To protect other records submitted by theprivate entity from disclosure, the responsible public entity shall determinewhether public disclosure prior to the execution of an interim agreement or acomprehensive agreement would adversely affect the financial interest orbargaining position of the public or private entity. The responsible publicentity shall make a written determination of the nature and scope of theprotection to be afforded by the responsible public entity under thissubdivision. Once a written determination is made by the responsible publicbody, the records afforded protection under this subdivision shall continueto be protected from disclosure when in the possession of any affectedjurisdiction or affected local jurisdiction to which such records areprovided by the responsible public entity.

Nothing in this subdivision shall be construed to authorize the withholdingof (a) procurement records as required by 56-573.1:1 or 56-575.17; (b)information concerning the terms and conditions of any interim orcomprehensive agreement, service contract, lease, partnership, or anyagreement of any kind entered into by the responsible public entity and theprivate entity; (c) information concerning the terms and conditions of anyfinancing arrangement that involves the use of any public funds; or (d)information concerning the performance of any private entity developing oroperating a qualifying transportation facility or a qualifying project.

For the purposes of this subdivision, the terms "affected jurisdiction,""affected local jurisdiction," "comprehensive agreement," "interimagreement," "qualifying project," "qualifying transportation facility,""responsible public entity," and "private entity" shall mean the same asthose terms are defined in the Public-Private Transportation Act of 1995 orin the Public-Private Education Facilities and Infrastructure Act of 2002.

11. (Effective July 1, 2007) Records provided by a private entity to aresponsible public entity, affected jurisdiction, or affected localjurisdiction pursuant to the provisions of the Public-Private TransportationAct of 1995 ( 56-556 et seq.) or the Public-Private Education Facilities andInfrastructure Act of 2002 ( 56-575.1 et seq.), to the extent that suchrecords contain (i) trade secrets of the private entity as defined in theUniform Trade Secrets Act ( 59.1-336 et seq.); (ii) financial records of theprivate entity, including balance sheets and financial statements, that arenot generally available to the public through regulatory disclosure orotherwise; or (iii) other information submitted by the private entity, where,if the records were made public prior to the execution of an interimagreement or a comprehensive agreement, the financial interest or bargainingposition of the public or private entity would be adversely affected. Inorder for the records specified in clauses (i), (ii) and (iii) to be excludedfrom the provisions of this chapter, the private entity shall make a writtenrequest to the responsible public entity:

1. Invoking such exclusion upon submission of the data or other materials forwhich protection from disclosure is sought;

2. Identifying with specificity the data or other materials for whichprotection is sought; and

3. Stating the reasons why protection is necessary.

The responsible public entity shall determine whether the requested exclusionfrom disclosure is necessary to protect the trade secrets or financialrecords of the private entity. To protect other records submitted by theprivate entity from disclosure, the responsible public entity shall determinewhether public disclosure prior to the execution of an interim agreement or acomprehensive agreement would adversely affect the financial interest orbargaining position of the public or private entity. The responsible publicentity shall make a written determination of the nature and scope of theprotection to be afforded by the responsible public entity under thissubdivision. Once a written determination is made by the responsible publicbody, the records afforded protection under this subdivision shall continueto be protected from disclosure when in the possession of any affectedjurisdiction or affected local jurisdiction to which such records areprovided by the responsible public entity.

Nothing in this subdivision shall be construed to authorize the withholdingof (a) procurement records as required by 56-573.1:1 or 56-575.17; (b)information concerning the terms and conditions of any interim orcomprehensive agreement, service contract, lease, partnership, or anyagreement of any kind entered into by the responsible public entity and theprivate entity; (c) information concerning the terms and conditions of anyfinancing arrangement that involves the use of any public funds; or (d)information concerning the performance of any private entity developing oroperating a qualifying transportation facility or a qualifying project.

For the purposes of this subdivision, the terms "affected jurisdiction,""affected local jurisdiction," "comprehensive agreement," "interimagreement," "qualifying project," "qualifying transportation facility,""responsible public entity," and "private entity" shall mean the same asthose terms are defined in the Public-Private Transportation Act of 1995 orin the Public-Private Education Facilities and Infrastructure Act of 2002.

12. Confidential proprietary information or trade secrets, not publiclyavailable, provided by a private person or entity to the Virginia ResourcesAuthority or to a fund administered in connection with financial assistancerendered or to be rendered by the Virginia Resources Authority where, if suchinformation were made public, the financial interest of the private person orentity would be adversely affected, and, after June 30, 1997, where suchinformation was provided pursuant to a promise of confidentiality.

13. Confidential proprietary records that are provided by a franchisee underArticle 1.2 ( 15.2-2108.19 et seq.) of Chapter 21 of Title 15.2 to itsfranchising authority pursuant to a promise of confidentiality from thefranchising authority that relates to the franchisee's potential provision ofnew services, adoption of new technologies or implementation of improvements,where such new services, technologies or improvements have not beenimplemented by the franchisee on a nonexperimental scale in the franchisearea, and where, if such records were made public, the competitive advantageor financial interests of the franchisee would be adversely affected. Inorder for confidential proprietary information to be excluded from theprovisions of this chapter, the franchisee shall (i) invoke such exclusionupon submission of the data or other materials for which protection fromdisclosure is sought, (ii) identify the data or other materials for whichprotection is sought, and (iii) state the reason why protection is necessary.

14. Documents and other information of a proprietary nature furnished by asupplier of charitable gaming supplies to the Department of Charitable Gamingpursuant to subsection E of 18.2-340.34.

15. Records and reports related to Virginia apple producer sales provided tothe Virginia State Apple Board pursuant to 3.1-622 and 3.1-624.

16. Trade secrets, as defined in the Uniform Trade Secrets Act ( 59.1-336 etseq.) of Title 59.1, submitted by CMRS providers as defined in 56-484.12 tothe Wireless Carrier E-911 Cost Recovery Subcommittee created pursuant to 56-484.15, relating to the provision of wireless E-911 service.

17. Records submitted as a grant application, or accompanying a grantapplication, to the Commonwealth Health Research Board pursuant to Chapter 22( 23-277 et seq.) of Title 23 to the extent such records contain proprietarybusiness or research-related information produced or collected by theapplicant in the conduct of or as a result of study or research on medical,rehabilitative, scientific, technical, or scholarly issues, when suchinformation has not been publicly released, published, copyrighted, orpatented, if the disclosure of such information would be harmful to thecompetitive position of the applicant.

18. Confidential proprietary records and trade secrets developed and held bya local public body (i) providing telecommunication services pursuant to 56-265.4:4 and (ii) providing cable television services pursuant to Article1.1 ( 15.2-2108.2 et seq.) of Chapter 21 of Title 15.2, to the extent thatdisclosure of such records would be harmful to the competitive position ofthe locality. In order for confidential proprietary information or tradesecrets to be excluded from the provisions of this chapter, the locality inwriting shall (i) invoke the protections of this subdivision, (ii) identifywith specificity the records or portions thereof for which protection issought, and (iii) state the reasons why protection is necessary.

19. Confidential proprietary records and trade secrets developed by or for alocal authority created in accordance with the Virginia Wireless ServiceAuthorities Act ( 15.2-5431.1 et seq.) to provide qualifying communicationsservices as authorized by Article 5.1 ( 56-484.7:1 et seq.) of Chapter 15 ofTitle 56, where disclosure of such information would be harmful to thecompetitive position of the authority, except that records required to bemaintained in accordance with 15.2-2160 shall be released.

20. Trade secrets as defined in the Uniform Trade Secrets Act ( 59.1-336 etseq.) or financial records of a business, including balance sheets andfinancial statements, that are not generally available to the public throughregulatory disclosure or otherwise, provided to the Department of MinorityBusiness Enterprise as part of an application for (i) certification as asmall, women- or minority-owned business in accordance with Chapter 14 (2.2-1400 et seq.) of this title or (ii) a claim made by a disadvantagedbusiness or an economically disadvantaged individual against the CapitalAccess Fund for Disadvantaged Businesses created pursuant to 2.2-2311. Inorder for such trade secrets or financial records to be excluded from theprovisions of this chapter, the business shall (a) invoke such exclusion uponsubmission of the data or other materials for which protection fromdisclosure is sought, (b) identify the data or other materials for whichprotection is sought, and (c) state the reasons why protection is necessary.

(1999, cc. 485, 518, 703, 726, 793, 849, 852, 867, 868, 881, 2.1-342.01;2000, cc. 66, 237, 382, 400, 430, 583, 589, 592, 594, 618, 632, 657, 720,932, 933, 947, 1006, 1064; 2001, cc. 288, 518, 844, 2.2-3705; 2002, cc. 87,155, 242, 393, 478, 481, 499, 522, 571, 572, 633, 655, 715, 798, 830; 2003,cc. 274, 307, 327, 332, 358, 704, 801, 884, 891, 893, 897, 968; 2004, cc.593, 690; 2005, cc. 258, 411; 2006, cc. 73, 76, 467, 831, 921, 936; 2006, Sp.Sess. I, c. 1.)