Date: January 2005

As more governmental bodies and private entities look to negotiate extremely complicated transactions, the public's desire to know the facts will be an ongoing issue. Heavily negotiated public-private deals will be under more scrutiny than ever before given the current fiscal state of most local and state governments.

Nearly every state has its own version of the Federal Freedom of Information Act, referenced variously as Open Records, Open Meetings, Open Government, etc. These laws basically give every citizen the right to request information and have access to government records without having to explain to the government the reason behind the request.

Public information includes any information that is collected, assembled, or maintained by or for a governmental entity. The statutes usually apply to records regardless of their format; including information that is maintained in paper, tape, microfilm, video, electronic data held in a computer's memory, as well as other mediums specified under the respective state statute. All government information is presumed to be available to the public and, while certain exceptions may apply, all governmental bodies are obligated to promptly release requested information that is not confidential by law or for which a legal exception has been shown.

The stakes are high for governmental officials that handle open record requests as there are strict timelines for making determinations on what records to release, and officials must make such decisions knowing that there are potential criminal penalties at state if the government releases information that is considered confidential under state law.

Similarly, officials may face criminal [and civil] penalties if they refuse to release information that is considered open to the public. For example, in 2001, Armen Yousofian was awarded just over $100,000 in a public records victory against King County, Washington. The judge awarded the amount to Yousofian for King County's failure to release documents related to the development of a new National Football League stadium for the Seattle Seahawks. It was the largest open records act penalty in Washington state history.

Why such a large fine? The court determined that it took King County more than four years to provide Yousofian with all the documents he requested in his effort to learn more about the King County negotiations with the team, its plan to implode the Seattle Kingdome and its campaign to build a new football stadium.

Under federal and state law, all information held by governmental bodies is open to public disclosure unless it falls within one of the specific exceptions to disclosure. There are few exceptions to these statutes, but there are some available that are useful in the transactions contemplated in this article.

For instance, in some states, the following exceptions could be presented in order to prevent disclosure of documents produced during contract negotiations:

• Confidential information

• Information related to competition or bidding

• Information related to location or price of property

• Certain legislative documents

• Certain legal matters

• Certain private communications of an elected office holder

• Trade secrets; certain commercial or financial information

• Agency memoranda

• Certain information relating to regulation of financial institutions or securities

• Audit working papers

• Certain information submitted by potential vendors or contractors

• Economic development information

• Information involving privacy or property interest of a third party

If a government agency plans to withhold certain information, it usually must request an attorney general's ruling. Once you have a clear understanding of the process, government agencies and private entities can establish a set of rules to limit their exposure to open records requests.

Some things to consider include:

• Limiting personal notes kept by government officials

• Limiting the number and circulation of draft documents, memorandum and other written materials to government officials

• Taking full advantage of the attorney-client privilege

• Limiting the number of public attendees at closed door private negotiating sessions

• Limiting the public entities' participation in facility revenue streams

• Once public, providing regular but appropriate status updates of the negotiation

Franklin D. R. Jones Jr. and Joshua L. Lebar are members of the Sports and Public Venue Practice Group for Winstead Sechrest & Minick P. C. Jones can be contacted at (713) 650-2760, or by e-mail at fjones@winstead.com. Lebar can be contacted at (713) 650-2664, or by e-mail at jlebar@winstead.com.