Statutes commonly referred to as Freedom of Information Acts (FOIAs) or, less commonly, Data Practices Acts are powerful tools that contractors and subcontractors engaged in public construction should use. Generally, FOIAs require public bodies to disclose records either immediately or within a short time after a person submits a written request for access to the records.

Uses for the Tool

Scenarios where contractors and subcontractors may use FOIA requests to their advantage include the following:

• A second low bidder for a public construction project may use FOIA requests to review the public body’s bid files and evaluate potential challenges to the responsiveness of the low bidder’s bid, the evaluation of the low bidder’s responsibility, or the ability of a public body to waive irregularities.
• A contractor may use FOIA requests to review a public body’s internal correspondence or correspondence with the public body’s engineer to gather records supporting a claim for additional compensation.
• A contractor or subcontractor may use FOIA requests to acquire all records in a public body’s possession relating to subsurface conditions at a construction site as part of the contractor’s or subcontractor’s prebid due diligence. Public bodies aggressively relying on prebid inspection clauses to deny differing site conditions claims might fault a contractor or subcontractor for not making an FOIA request to discover information that would have caused the contractor or subcontractor to bid differently.
• Where arbitration or litigation with the public entity seems inevitable, FOIA requests can be used to obtain substantial discovery outside of the typical processes (although some states limit this).
• A contractor faced with an uncommon issue may use FOIA requests to uncover records that may indicate how the public body addressed that issue in the past when other contractors encountered it.

FOIA requests can be used in any number of situations in addition to those listed above. The creativity of the requesting person(s) is the primary limiting factor. Generally, burdensome requests should be made with caution and restricted if the person making the request is fearful of stirring up trouble or unwarranted attention. On the other hand, public bodies are usually curious as to why an FOIA request was made and often provide important explanatory information regarding the written records produced.

Limits on FOIA Requests

Most FOIAs have a laundry list of exceptions that would entitle the public body to delay or refuse to provide the records. The significant and general rule is that public bodies will not be required to provide information protected by attorney-client privileges, the work product doctrine, information about the review of competitive bids before the government makes an award, employment records of employees of the public body, and similar sensitive data. Each jurisdiction’s statute is different, and persons considering making a request should review the exceptions to avoid making inappropriate requests. Further, most FOIAs will not require the public body to generate new records or compilations—they only need to produce records that already exist.

Fees for FOIAs

Public bodies have a right to charge for copying expenses and labor costs incurred to locate and produce the requested records. It is often less expensive for the requesting party simply to arrange for a time to inspect the documents in person and select for copying only those records that are actually needed.

The Power of the Request

Public bodies that refuse or fail to respond to FOIA requests do so at great risk. Persons requesting information are typically entitled to sue in court if a request is denied. If the courts agree that the request is appropriate, the public body will be required to comply, and those making the request will be entitled to reimbursement of their attorneys’ fees. Attorneys’ fees might not be recoverable, however, in cases where an FOIA request is made by a party with ongoing litigation with the public body and is using FOIA as an alternative discovery tool.

A public body looks bad when it does not respond to an FOIA request. One of the main purposes of FOIA is to provide open access to public records so that citizens can evaluate government at work, and formulate lobbying and voting strategies. Additional purposes are to promote transparency and reduce fraud in government. A public body’s failure or refusal to respond to FOIA requests raises suspicion of wrongdoing that elected or appointed officials should wish to avoid.

The Bottom Line

Sir Francis Bacon famously proclaimed, “Knowledge is power.” Contractors and subcontractors engaged in public construction work should use every tool available to them to gain knowledge and, accordingly, power. FOIA requests are one of a contractor’s or subcontractor’s best tools to obtain essential knowledge.

This article has been © 2007 FWH&T and reprinted with permission from The Construction Law Briefing Paper.

Disclaimer: This discussion is generalized in nature and should not be considered a substitute for professional advice. Readers are advised to contact counsel before embarking on any of the options discussed in this article.