H. Economic development records

Alabama has adopted statutes which denote various economic development records as confidential including initial notices of projects (Ala. Code § 41-29-3(a)(1)) and project proposals (Ala. Code § 41-29-3(b); § 41-29-285).  See also Ala. Acts No. 2021-455 (providing that third-parties who enter into contracts with the Alabama Innovation Corporation do not automatically become subject to the Open Records Act).

Various programs exist to promote economic development through government agencies. Provisions concerning access to or confidentiality of documents submitted to or generated by such agencies in connection with these programs is addressed in a number of sections of this outline. Among these are, e.g., sections II.B.6(c) and II.B.26(d), addressing Bidcos (business and industrial development corporations, but note, statutes relating to the BIDCO Fund have been repealed, effective September 13, 2018), and section II.B.32, addressing the Alaska Industrial Development Authority.

A registration form constitutes an official public record once completed and signed by the elector and received by the county recorder.  A.R.S. § 16-161.  But certain public officials and victims of domestic violence can prevent the general public from accessing their residential address, telephone number, and voting precinct number by filing an affidavit with the state.  A.R.S. § 16-153; see Primary Consultants, L.L.C. v. Maricopa Cty. Recorder, 210 Ariz. 393, 397-98, 111 P.3d 435, 439-40 (Ct. App. 2005) (noting that voter registration records are public records subject to certain restrictions).

A form showing a declination to register to vote is confidential and may be used only for voter registration purposes.  A.R.S. § 16-140(C).  Moreover, public access is prohibited to the death records sent by the Department of Health Services to the Secretary of State for purposes of removing deceased persons from the statewide voter registration database.  A.R.S. § 16-165(D).

No partial or complete tallies of early elections will be divulged before all precincts have reported or one hour after the polls close on election day, whichever occurs first.  A.R.S. § 16-551(C).  The official canvass of an election becomes part of the public record and is kept by the Secretary of State, the appropriate city and town clerks, or the clerk of the board of supervisors. A.R.S. §§ 16-646(B), (D).

Code marks on ballots used in the primaries or general election cannot be “marked in any manner that will disclose the identity of the voter who votes that ballot.”  A.R.S. §§ 16-466(B), 16-468(2).

The Arizona Secretary of State’s report that includes “information on the number of ballots transmitted to absent uniformed services voters and overseas voters and the number of ballots returned and cast in the election” is available to the public.  A.R.S. § 16-142(B).

Any files that might “give advantage to competitors or bidders” if disclosed and records maintained by the Arkansas Economic Development Commission that are “related to any business entity’s planning, site location, expansion, operations, or product development and marketing” are exempt from disclosure under the FOIA unless the business entity grants approval for release. Ark. Code Ann. § 25-19-105(b)(9)(A). The exemption does not apply to records of “expenditures or grants made or administered by the commission” that are otherwise disclosable. Id. § 25-19-105(b)(9)(B). The Attorney General has opined that local offices of Economic Development are not included by this exemption, though records maintained by those offices might be covered by the “competitive disadvantage” exemption in § 25-19-105(b)(9). Ark. Op. Att’y Gen. No. 95-108.

Presumptively public, unless the public’s interest in nondisclosure clearly outweighs the public’s interest in disclosure under Section 7922.000 of the Government Code, or if some other express statute applies to the specific type of records under consideration.  See, e.g., Cal. Gov’t Code § 7928.705 (real estate appraisals pertaining to the acquisition of property or prospective supply and construction contracts).

Open. No specific exemption is provided for such records in the Open Records Act or any other statute.

There are no specific provisions or reported authorities regarding economic development records.

In 2017, the General Assembly enacted legislation for economic development that established a “public/private partnership” co-chaired by the Governor and led by a board of directors in large part appointed by the Governor. The statute specifically provides that the partnership’s IRS Form 990 returns, audited financial reports and the conflict, audit and expense policies are public records, and the financial records of private directors, which the private directors must submit to the General Assembly and the Governor, are not public records. See 29 Del. C. § 8706A(c), (f).

The Attorney General has determined the partnership is not a public body subject to FOIA disclosure requirements beyond those included in the legislation. Del. Op. Att’y Gen., No. 20-IB01 (Jan. 3, 2020).

Not specifically addressed.

The records of economic development agencies are subject to certain exemptions to the Public Records Law, Chapter 119. Fla. Stat. § 288.075 (2020).

The Act exempts records maintained by the Department of Economic Development pertaining to an economic development project until the project is secured by a “binding commitment” or the project has been terminated.  O.C.G.A. § 50-18-72(a)(46). The Act also exempts records related to any statutory “quick start” training program that would disclose such a project until a binding commitment has been secured.  O.C.G.A. § 50-18-72(a)(47). No later than five business days after the Department of Economic Development secures a binding commitment and the department has committed the use of state funds, the department must post on its website notice of the project and a copy of records documenting the commitment and its negotiation.  The department must also publish notice of the project and the participating parties in the legal organ of each county in which the economic development project is to be located.  “Economic development project” for purposes of these exceptions means “a plan or proposal to locate a business, or to expand a business, that would involve an expenditure of more than $25 million by the business or the hiring of more than 50 employees.”  O.C.G.A. § 50-18-72(a)(46).

There is no statutory or case law addressing this issue.

Idaho Code § 74-107(6) specifically exempts records gathered by a local agency or the Idaho Department of Commerce for the specific purpose of assisting a person to locate, maintain, invest in or expand business operations in Idaho.

Open, but records pertaining to real estate purchase negotiations are exempt until those negotiations have been completed or terminated. 5 ILCS 140/7(1)(r).  With respect to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding, records regarding that parcel are exempt except as allowed under discovery rules. Records relating to a real estate sale are exempt until a sale is consummated. 5 ILCS 140/7(1)(r).

Also exempt are construction related technical documents (such as architects’ plans and engineers’ technical submissions) for public and non-public projects (including power generating and distribution stations and other transmission and distribution facilities, water treatment facilities, airport facilities, sport stadiums, convention centers, and all government owned, operated, or occupied buildings) if disclosure would compromise security. 5 ILCS 140/7(1)(k).

The Indiana economic development corporation may declare application information exempt from disclosure under the Act.  Ind. Code § 5-14-3-4(a)(10).  Records of negotiations with the Indiana economic development corporation need not be disclosed while negotiations are in progress. Ind. Code § 5-14-3-4(b)(5).  After negotiations have terminated, the terms of a final offer shall be disclosed.  Id.

Confidential. Iowa Code § 22.7(8)

No applicable law.

Ky. Rev. Stat. 61.878 exempts certain economic development records from the Open Records Act. Ky. Rev. Stat. 61.878(c)(2) provides:

Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:

1. In conjunction with an application for or the administration of a loan or grant;
2. In conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in [Ky. Rev. Stat.] Chapter 154;
3. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
4. For the grant or review of a license to do business.

Id.

Economic development records that indicate final agency action are open, while records that are preliminary in nature – including those that relate to proposals, financial incentives, and negotiations – can be withheld under Ky. Rev. Stat. 61.878(1)(i) and (j). See OAG 87-21 (holding that records involved with an ongoing competitive negotiation process are preliminary pending final resolution of the matter); 97-ORD-62 (holding that records generated in the course of negotiations and disclosing the substance of those negotiations may be withheld pursuant to Ky. Rev. Stat. 61.878(1)(i) and (j) since “premature disclosure of records reflecting the negotiations . . . could seriously compromise the project.”); see also 04-ORD-81 (unaccepted proposals and incentives “remain preliminary and inchoate as they were never accepted and no final agreement reached”).

In 2018, the Kentucky General Assembly added a specific exemption to the Open Records Act for:

Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:

1. A contract is awarded; or
2. The procurement process is canceled without award of a contract and there is a determination that the contract will not be resolicited.

Ky. Rev. Stat. 61.878(1)(o).

The Act contains a limited exemption for certain “records in the custody of the Department of Economic Development pertaining to an active negotiation with a person for the purpose of retaining, expanding, or attracting economic or business development in the state” if the person requests confidentiality and details the reasons, and the secretary of the Department of Economic Development agrees. The exemption ends “immediately upon the conclusion of the negotiation”; the exemption can last no longer than 24 months. The exemption ceases to exist “beginning with any negotiations that begin on or after July 1, 2012.” La. Rev. Stat. Ann. § 44:22.

Five categories of documents relating to economic development are confidential by statute.  5 M.R.S.A. § 13119-A.  These include proprietary information, tax or financial information, financial statements, credit assessments, and any records in connection with the matching of potential investors with business in the State by the Department of Economic and Community Development or a municipality.  Id. The Maine Supreme Court discussed the taxpayer information exemption in Blue Sky West, LLC v. Maine Revenue Services, 2019 ME 137, ¶ 41, 215 A.3d 812, and held the property information submitted by Blue Sky West to Maine Revenue Services could not be shared with the county unless the record (1) was designated as confidential when submitted and (2) contained proprietary information. See 36 M.R.S.A. § 706-A(1) (exempting confidential and proprietary taxpayer information).

Trade secret, confidential commercial information, and confidential financial information owned either by the Maryland Technology Development Corporation or by a public senior higher education institution (Morgan State University, St. Mary’s College, and constituent institutions of the University of Maryland) are protected in connection with, inter alia, economic development efforts. § 4-348. See also Office of the Governor v. Washington Post Co., 360 Md. 520, 549 (2000) (holding that a record of a telephone call about an economic development project does not itself constitute confidential commercial information, but that notes detailing the substance of the discussion might).

The Supervisor of Public Records has suggested that the state could rely on the privacy exemption to withhold names and addresses of state residents receiving unemployment benefits. (See C. Herman, “Rebate records withheld by state,” CommonWealth, Feb. 8, 2011.)

Not specifically addressed.

Economic development data are classified by a variety of statutes unrelated to the Act. For a list of these statutes, see Minn. Stat. § 13.598.

Open.  See Harrison County Dev. Comm’n v. Kinney, 920 So. 2d 497 (Miss. 2006).

Records and documents submitted to the department of economic development, to the Missouri economic development, export and infrastructure board, or to a regional planning commission formed pursuant to chapter 251, relating to financial investments in a business, or sales projections or other business plan information which may endanger the competitiveness of a business, or records pertaining to a business prospect with which the department, board, or commission is currently negotiating, may be deemed a closed record. Mo.Rev.Stat. § 620.014.

Open.

No statute addresses public status of economic development records. In Frederick v. City of Falls City, 289 Neb. 864, 857 N.W.2d 569 (2015), the Supreme Court adopted a “functional equivalency test” and concluded that a non-profit corporation which had an economic development relationship with a city was not subject to the public records statues.

Records or other documents of clients will be kept confidential if so requested and approved by the agency. NRS 231.069.

Unless the records are exempt “confidential, commercial or financial information” (or another provision of RSA 91-A:5), the records would be disclosed.  Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540 (1997).

There is no specific statute or case decision dealing with these records. If they meet the definition of “Government Record” in OPRA then they are accessible. To the extent they contain any trade secrets, proprietary commercial or financial information, that information can be redacted, pursuant to N.J.S.A. 47:1A-1.1, prior to the production of the records.

Audits of economic development projects are to be performed annually, and they constitute public records.  NMSA 1978 § 5-10-11(C).  However, proprietary information obtained by the Technology Enterprise Division of the Economic Development Department “shall not be deemed a public record” under the Public Records Act or be open to inspection under NMSA 1978 § 14-2-1.  See NMSA 1978 § 9-15-18.

Presumably open, but no law speaks directly on the issue.

When a public agency performs a cost benefit analysis with respect to economic development incentives, the agency must describe in detail the assumptions and methodologies used in completing the analysis or assessment, and that description is a public record. G.S. 132-1.11(a). Records relating to the proposed expansion or location of specific business or industrial projects may be withheld so long as their release would frustrate the purpose for which such public records were created. G.S. § 132-6(d). Moreover, this provision may not justify withholding general policies or activities. Id. Once a decision has been made by the public agency (or the proposed business) – either in favor of or against relocation – the justification for withholding no longer applies, and the agency shall disclose as soon as practicable, but no later than within 25 business days, public records requested for the project that are not otherwise made confidential by law. Id. If records are withheld under this provision, the public agency bears the burden of proving that release would have frustrated the project. G.S. § 132-9(b).

Unless confidential because they contain trade secret, proprietary, commercial, or financial information that is of a privileged nature and has not been previously disclosed, the following economic development records are exempt: 1) Records and information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of its interest or intent to locate, relocate, or expand within the state, or partner with a public entity to conduct research or to license a discovery or innovation (this exemption does not include records pertaining to the application for permits or licenses necessary to do business or to expand business operations within the state, except as otherwise provided by law); and 2) Trade secrets and proprietary, commercial, or financial information received from a person who is interested in applying for or receiving financing, technical assistance, or other forms of business assistance. N.D.C.C. § 44-04-18.4(5).

Economic development records are public records, but are subject to the trade secrets exception. State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland, 63 Ohio St.3d 773, 591 N.E.2d 708 (1992).

The Oklahoma Capital Formation Board must keep confidential marketing plans, financial statements, trade secrets, research concepts, methods or products, or any other proprietary information of entities with which it is dealing. 74 O.S. § 5085.6.C. Absent a specific exemption under the Act, records such as information of the name of the entity receiving assistance, the amount of investment or credit insurance the Board has at risk in the venture and the returns from investments or credit insurance are subject to disclosure under the Act. 2012 OK AG 1.

See ORS 192.355(17).

These records would be presumptively be available as they are “financial records.” Recently, the Office of Open Records (OOR) required the disclosure of records relating to proposals to Amazon for its proposed second headquarter project. See In re Krauss v. Pa. Dep’t of Cmty. & Econ. Dev., 2018 WL 4383155 (Pa.Off.Open Rec. 2018).  The OOR rejected the Department’s argument that the proposals contained “trade secrets” exempt from disclosure. Id.

There is no statutory or case law addressing this issue.

Economic development records may be sheltered from disclosure until an offer is accepted and a public announcement made.  S.C. Code Ann. §§30-4-40(a)(9) and 30-4-55.

If not “proprietary” or “trade secret” information, open.

In Coleman v. Kisber, 338 S.W.3d 895 (Tenn. Ct. App. 2010) the court ruled such records of companies selected to participate in TNInvestco, an economic and job creation program, were exempt from disclosure.

All working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate are explicitly made public unless made confidential by other law.  Tex. Gov't Code.  § 552.022(a)(5).

GRAMA exempts from disclosure “records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract.” Utah Code § 63G-2-305(35).

The Vermont Economic Development Authority (“VEDA”) was created by the General Assembly in 1974 to lead in the area of economic development. 10 V.S.A. § 7 requires an entity seeking economic development assistance to fill out a form approved by the agency granting assistance stating “the number of new jobs that will be created or existing jobs that will be retained as a result of such assistance, the wages and employee benefits associated with such jobs, and a description of any other public benefits associated with such economic development assistance.” 10 V.S.A. § 7(b). These forms remain confidential for 90 days “[a]fter the expiration of such 90 day period such statements and information shall not be considered confidential, and may be inspected and copied pursuant to 1 V.S.A. chapter 5, subchapter 3 (public records law), notwithstanding the provisions of any other law.” 10 V.S.A. § 7(b). Economic development recipients are also required to fill out an annual report detailing whether and how the recipient met their development goals. The statute is silent as to whether these forms are also subject to disclosure as a public record. 10 V.S.A. § 7(c).

If VEDA has exhausted all rights and remedies to enforce the terms of a financing document or mortgage serving as security for a loan, the identity of the borrower and the outstanding principal balance of the loan shall become a public record. 10 V.S.A. § 217(d).

Information relating to the cost of any qualified project undertaken through the infrastructure bank program is considered a public record, and subject to the provisions of 1 V.S.A. chapter 5, subchapter 2.” 10 V.S.A. § 280y.

Records, voluntarily provided by a private business pursuant to a promise of confidentiality from a public body or prepared by the public body where competition or bargaining is involved, used for the purpose of business, trade and tourism development or retention are exempt. Va. Code. Ann. § 2.2-3705.6.3.

The Public Records Act exempts from disclosure financial and commercial information supplied in applications for economic development loans or program services provided by any local agency. RCW 42.56.270(4). Also exempt is certain financial and proprietary information submitted to the Department of Community, Trade, and Economic Development. RCW 42.56.270(12).

West Virginia Code section 5B-2-1 exempts from the West Virginia FOIA “any documentary material, data or other writing made or received by any public body whose primary responsibility is economic development for the purpose of furnishing assistance to a new or existing business.” W. Va. Code § 5B-2-1. This exemption specifically applies to the West Virginia Economic Development Office and other similar public bodies with such responsibilities.

The exemption includes a proviso requiring release of “any agreement entered into or signed by the development office or public body which obligates public funds shall be subject to inspection and copying pursuant to the provisions of said article as of the date the agreement is entered into, signed or otherwise made public.” W. Va. Code § 5B-2-1. This exemption for economic development records was enacted to limit the liberal construction afforded FOIA by the state Supreme Court in Daily Gazette Co., Inc. v. West Virginia Dev. Office, 198 W. Va. 563, 575, 482 S.E.2d 180, 192 (1996) (“Gazette I”).

Records of any center established by a doctorial institution for economic development and technology advancement is exempt from the provisions of the West Virginia Freedom of Information Act. W. Va. Code § 18B-12A-4.

West Virginia Code section 5B-2I-8 exempts from FOIA disclosure “Any documentary material, data or other writing made or received by the West Virginia Tourism Office, the West Virginia Development Office or the Tourism Commission, for the purpose of furnishing assistance to a new or existing business is exempt.” W. Va. Code § 5B-2I-8. However, “any agreement entered into or signed by the West Virginia Tourism Office or the West Virginia Development Office which obligates public funds is subject to inspection and copying . . . as of the date the agreement is entered into, signed or otherwise made public.” Id.

Under West Virginia Code section 5B-1-6(a),  “Information that would be confidential under the laws of this state when provided to a division, agency, board, commission or office within the [Department of Commerce] is confidential when that information is provided to the secretary of commerce or an employee the secretary’s office. Such information may be disclosed only: (1) To the applicable agency, board, commission or division of the department to which the information relates; or (2) in the manner authorized by provisions of West Virginia law applicable to that agency, board, commission or division.” W. Va. Code § 5B-1-6(a).

Moreover, confidential information “in the possession of any division, agency, board, commission or office of the department of commerce may be disclosed to the secretary or an employee in the office of the secretary.”  W. Va. Code § 5B-1-6(b).

“The secretary or employee shall safeguard the information and may not further disclose the information except under the same conditions, restrictions and limitations applicable to the administrator of the agency, board, commission, division or office of the department in whose hands the information is confidential. This subsection does not require disclosure of individually identifiable health care or other information that is prohibited from disclosure by federal law.” Id.

The provisions of the Department of Commerce’s confidentiality rule

(1) Apply only to information that is actually disclosed by a division, agency, board, commission or office within a department to the secretary, or an employee in the office of the secretary, of that department;

(2) Do not authorize disclosure or exempt from the provisions of article one, chapter twenty-nine-b of this code any confidential information of a division, agency, board, commission or office within a department to any person or entity other than the secretary, or an employee in the office of the secretary, of that department;

(3) Apply only to disclosure between a division, agency, board, commission or office within a department and the secretary, or an employee in the office of the secretary, of that department.

W. Va. Code § 5B-1-6(c).

Economic development records are presumed public but subject to withholding where competitive or bargaining reasons require under the common law balancing test. See also State v. Beaver Dam Area Dev. Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295 (private corporation that performs government functions may be subject to Open Records and Open Meetings laws as a “quasi-governmental corporation.”).

Economic development records either created or received by a public agency are generally open to the public.  Wyoming has no case law pertaining to the availability of records held by public/private nonprofit entities dedicated to economic development.