§ 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 a public body, used by thepublic body for business, trade and tourism development or retention; andmemoranda, working papers or other records related to businesses that areconsidering locating or expanding in Virginia, prepared by a public body,where competition or bargaining is involved and where, if such records aremade public, the financial interest of the public body would be adverselyaffected.
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 F 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. a. Memoranda, staff evaluations, or other records prepared by theresponsible public entity, its staff, outside advisors, or consultantsexclusively for the evaluation and negotiation of proposals filed under thePublic-Private Transportation Act of 1995 (§ 56-556 et seq.) or the PublicPrivate Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 etseq.), where (i) if such records were made public prior to or after theexecution of an interim or a comprehensive agreement, § 56-573.1:1 or56-575.17 notwithstanding, the financial interest or bargaining position ofthe public entity would be adversely affected, and (ii) the basis for thedetermination required in clause (i) is documented in writing by theresponsible public entity; and
b. Records provided by a private entity to a responsible public entity,affected jurisdiction, or affected local jurisdiction pursuant to theprovisions of the Public-Private Transportation Act of 1995 or thePublic-Private Education Facilities and Infrastructure Act of 2002, to theextent that such records contain (i) trade secrets of the private entity asdefined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (ii) financialrecords of the private entity, including balance sheets and financialstatements, that are not generally available to the public through regulatorydisclosure or otherwise; or (iii) other information submitted by the privateentity, where, if the records were made public prior to the execution of aninterim agreement or a comprehensive agreement, the financial interest orbargaining position of the public or private entity would be adverselyaffected. In order for the records specified in clauses (i), (ii) and (iii)to be excluded from the provisions of this chapter, the private entity shallmake a written 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 publicentity, the records afforded protection under this subdivision shall continueto be protected from disclosure when in the possession of any affectedjurisdiction or affected local jurisdiction.
Except as specifically provided in subdivision 11 a, nothing in thissubdivision shall be construed to authorize the withholding of (a)procurement records as required by § 56-573.1:1 or 56-575.17; (b) informationconcerning the terms and conditions of any interim or comprehensiveagreement, service contract, lease, partnership, or any agreement of any kindentered into by the responsible public entity and the private entity; (c)information concerning the terms and conditions of any financing arrangementthat involves the use of any public funds; or (d) information concerning theperformance of any private entity developing or operating a qualifyingtransportation 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. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 etseq.), or confidential proprietary records that are not generally availableto the public through regulatory disclosure or otherwise, provided by a (a)bidder or applicant for a franchise or (b) franchisee under Chapter 21 (§15.2-2100 et seq.) of Title 15.2 to the applicable franchising authoritypursuant to a promise of confidentiality from the franchising authority, tothe extent the records relate to the bidder's, applicant's, or franchisee'sfinancial capacity or provision of new services, adoption of new technologiesor implementation of improvements, where such new services, technologies orimprovements have not been implemented by the franchisee on a nonexperimentalscale in the franchise area, and where, if such records were made public, thecompetitive advantage or financial interests of the franchisee would beadversely affected.
In order for trade secrets or confidential proprietary information to beexcluded from the provisions of this chapter, the bidder, applicant, orfranchisee shall (i) invoke such exclusion upon submission of the data orother materials for which protection from disclosure is sought, (ii) identifythe data or other materials for which protection is sought, and (iii) statethe reason why protection is necessary.
No bidder, applicant, or franchisee may invoke the exclusion provided by thissubdivision if the bidder, applicant, or franchisee is owned or controlled bya public body or if any representative of the applicable franchisingauthority serves on the management board or as an officer of the bidder,applicant, or franchisee.
14. Documents and other information of a proprietary nature furnished by asupplier of charitable gaming supplies to the Department of Agriculture andConsumer Services pursuant 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 § 3.2-1215.
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 or loan application, or accompanying a grantor loan application, to the Innovation and Entrepreneurship InvestmentAuthority pursuant to Article 3 (§ 2.2-2233.1 et seq.) of Chapter 22 of Title2.2 or 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, technological, or scholarly issues,when such information has not been publicly released, published, copyrighted,or patented, 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-owned, 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.
21. Documents and other information of a proprietary or confidential naturedisclosed by a carrier to the State Health Commissioner pursuant to §32.1-276.5:1.
22. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 etseq.), including, but not limited to, financial records, including balancesheets and financial statements, that are not generally available to thepublic through regulatory disclosure or otherwise, and revenue and costprojections supplied by a private or nongovernmental entity to the InspectorGeneral of the Virginia Department of Transportation for the purpose of anaudit, special investigation, or any study requested by the InspectorGeneral's Office in accordance with law.
In order for the records specified in this subdivision to be excluded fromthe provisions of this chapter, the private or nongovernmental entity shallmake a written request to the Department:
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 Inspector General of the Virginia Department of Transportation shalldetermine whether the requested exclusion from disclosure is necessary toprotect the trade secrets or financial records of the private entity. TheVirginia Department of Transportation shall make a written determination ofthe nature and scope of the protection to be afforded by it under thissubdivision.
23. Records submitted as a grant application, or accompanying a grantapplication, to the Virginia Tobacco Indemnification and CommunityRevitalization Commission to the extent such records contain (i) tradesecrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.),(ii) financial records of a grant applicant that is not a public body,including balance sheets and financial statements, that are not generallyavailable to the public through regulatory disclosure or otherwise, or (iii)research-related information produced or collected by the applicant in theconduct of or as a result of study or research on medical, rehabilitative,scientific, technical, technological, 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; and memoranda, staff evaluations, orother records prepared by the Commission or its staff exclusively for theevaluation of grant applications. The exclusion provided by this subdivisionshall apply to grants that are consistent with the powers of and infurtherance of the performance of the duties of the Commission pursuant to §3.2-3103.
In order for the records specified in this subdivision to be excluded fromthe provisions of this chapter, the applicant shall make a written request tothe Commission:
1. Invoking such exclusion upon submission of the data or other materials forwhich protection from disclosure is sought;
2. Identifying with specificity the data, records or other materials forwhich protection is sought; and
3. Stating the reasons why protection is necessary.
The Commission shall determine whether the requested exclusion fromdisclosure is necessary to protect the trade secrets, financial records orresearch-related information of the applicant. The Commission shall make awritten determination of the nature and scope of the protection to beafforded by it under this subdivision.
(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; 2007, cc. 374, 693; 2008, cc. 71, 102, 266, 387, 633, 689,736, 743; 2009, cc. 246, 311, 325, 765, 810, 869; 2010, cc. 310, 808.)
§ 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 a public body, used by thepublic body for business, trade and tourism development or retention; andmemoranda, working papers or other records related to businesses that areconsidering locating or expanding in Virginia, prepared by a public body,where competition or bargaining is involved and where, if such records aremade public, the financial interest of the public body would be adverselyaffected.
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 F 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. a. Memoranda, staff evaluations, or other records prepared by theresponsible public entity, its staff, outside advisors, or consultantsexclusively for the evaluation and negotiation of proposals filed under thePublic-Private Transportation Act of 1995 (§ 56-556 et seq.) or the PublicPrivate Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 etseq.), where (i) if such records were made public prior to or after theexecution of an interim or a comprehensive agreement, § 56-573.1:1 or56-575.17 notwithstanding, the financial interest or bargaining position ofthe public entity would be adversely affected, and (ii) the basis for thedetermination required in clause (i) is documented in writing by theresponsible public entity; and
b. Records provided by a private entity to a responsible public entity,affected jurisdiction, or affected local jurisdiction pursuant to theprovisions of the Public-Private Transportation Act of 1995 or thePublic-Private Education Facilities and Infrastructure Act of 2002, to theextent that such records contain (i) trade secrets of the private entity asdefined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (ii) financialrecords of the private entity, including balance sheets and financialstatements, that are not generally available to the public through regulatorydisclosure or otherwise; or (iii) other information submitted by the privateentity, where, if the records were made public prior to the execution of aninterim agreement or a comprehensive agreement, the financial interest orbargaining position of the public or private entity would be adverselyaffected. In order for the records specified in clauses (i), (ii) and (iii)to be excluded from the provisions of this chapter, the private entity shallmake a written 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 publicentity, the records afforded protection under this subdivision shall continueto be protected from disclosure when in the possession of any affectedjurisdiction or affected local jurisdiction.
Except as specifically provided in subdivision 11 a, nothing in thissubdivision shall be construed to authorize the withholding of (a)procurement records as required by § 56-573.1:1 or 56-575.17; (b) informationconcerning the terms and conditions of any interim or comprehensiveagreement, service contract, lease, partnership, or any agreement of any kindentered into by the responsible public entity and the private entity; (c)information concerning the terms and conditions of any financing arrangementthat involves the use of any public funds; or (d) information concerning theperformance of any private entity developing or operating a qualifyingtransportation 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. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 etseq.), or confidential proprietary records that are not generally availableto the public through regulatory disclosure or otherwise, provided by a (a)bidder or applicant for a franchise or (b) franchisee under Chapter 21 (§15.2-2100 et seq.) of Title 15.2 to the applicable franchising authoritypursuant to a promise of confidentiality from the franchising authority, tothe extent the records relate to the bidder's, applicant's, or franchisee'sfinancial capacity or provision of new services, adoption of new technologiesor implementation of improvements, where such new services, technologies orimprovements have not been implemented by the franchisee on a nonexperimentalscale in the franchise area, and where, if such records were made public, thecompetitive advantage or financial interests of the franchisee would beadversely affected.
In order for trade secrets or confidential proprietary information to beexcluded from the provisions of this chapter, the bidder, applicant, orfranchisee shall (i) invoke such exclusion upon submission of the data orother materials for which protection from disclosure is sought, (ii) identifythe data or other materials for which protection is sought, and (iii) statethe reason why protection is necessary.
No bidder, applicant, or franchisee may invoke the exclusion provided by thissubdivision if the bidder, applicant, or franchisee is owned or controlled bya public body or if any representative of the applicable franchisingauthority serves on the management board or as an officer of the bidder,applicant, or franchisee.
14. Documents and other information of a proprietary nature furnished by asupplier of charitable gaming supplies to the Department of Agriculture andConsumer Services pursuant 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 § 3.2-1215.
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 or loan application, or accompanying a grantor loan application, to the Innovation and Entrepreneurship InvestmentAuthority pursuant to Article 3 (§ 2.2-2233.1 et seq.) of Chapter 22 of Title2.2 or 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, technological, or scholarly issues,when such information has not been publicly released, published, copyrighted,or patented, 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-owned, 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.
21. Documents and other information of a proprietary or confidential naturedisclosed by a carrier to the State Health Commissioner pursuant to §32.1-276.5:1.
22. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 etseq.), including, but not limited to, financial records, including balancesheets and financial statements, that are not generally available to thepublic through regulatory disclosure or otherwise, and revenue and costprojections supplied by a private or nongovernmental entity to the InspectorGeneral of the Virginia Department of Transportation for the purpose of anaudit, special investigation, or any study requested by the InspectorGeneral's Office in accordance with law.
In order for the records specified in this subdivision to be excluded fromthe provisions of this chapter, the private or nongovernmental entity shallmake a written request to the Department:
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 Inspector General of the Virginia Department of Transportation shalldetermine whether the requested exclusion from disclosure is necessary toprotect the trade secrets or financial records of the private entity. TheVirginia Department of Transportation shall make a written determination ofthe nature and scope of the protection to be afforded by it under thissubdivision.
23. Records submitted as a grant application, or accompanying a grantapplication, to the Virginia Tobacco Indemnification and CommunityRevitalization Commission to the extent such records contain (i) tradesecrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.),(ii) financial records of a grant applicant that is not a public body,including balance sheets and financial statements, that are not generallyavailable to the public through regulatory disclosure or otherwise, or (iii)research-related information produced or collected by the applicant in theconduct of or as a result of study or research on medical, rehabilitative,scientific, technical, technological, 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; and memoranda, staff evaluations, orother records prepared by the Commission or its staff exclusively for theevaluation of grant applications. The exclusion provided by this subdivisionshall apply to grants that are consistent with the powers of and infurtherance of the performance of the duties of the Commission pursuant to §3.2-3103.
In order for the records specified in this subdivision to be excluded fromthe provisions of this chapter, the applicant shall make a written request tothe Commission:
1. Invoking such exclusion upon submission of the data or other materials forwhich protection from disclosure is sought;
2. Identifying with specificity the data, records or other materials forwhich protection is sought; and
3. Stating the reasons why protection is necessary.
The Commission shall determine whether the requested exclusion fromdisclosure is necessary to protect the trade secrets, financial records orresearch-related information of the applicant. The Commission shall make awritten determination of the nature and scope of the protection to beafforded by it under this subdivision.
(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; 2007, cc. 374, 693; 2008, cc. 71, 102, 266, 387, 633, 689,736, 743; 2009, cc. 246, 311, 325, 765, 810, 869; 2010, cc. 310, 808.)
§ 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 a public body, used by thepublic body for business, trade and tourism development or retention; andmemoranda, working papers or other records related to businesses that areconsidering locating or expanding in Virginia, prepared by a public body,where competition or bargaining is involved and where, if such records aremade public, the financial interest of the public body would be adverselyaffected.
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 F 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. a. Memoranda, staff evaluations, or other records prepared by theresponsible public entity, its staff, outside advisors, or consultantsexclusively for the evaluation and negotiation of proposals filed under thePublic-Private Transportation Act of 1995 (§ 56-556 et seq.) or the PublicPrivate Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 etseq.), where (i) if such records were made public prior to or after theexecution of an interim or a comprehensive agreement, § 56-573.1:1 or56-575.17 notwithstanding, the financial interest or bargaining position ofthe public entity would be adversely affected, and (ii) the basis for thedetermination required in clause (i) is documented in writing by theresponsible public entity; and
b. Records provided by a private entity to a responsible public entity,affected jurisdiction, or affected local jurisdiction pursuant to theprovisions of the Public-Private Transportation Act of 1995 or thePublic-Private Education Facilities and Infrastructure Act of 2002, to theextent that such records contain (i) trade secrets of the private entity asdefined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (ii) financialrecords of the private entity, including balance sheets and financialstatements, that are not generally available to the public through regulatorydisclosure or otherwise; or (iii) other information submitted by the privateentity, where, if the records were made public prior to the execution of aninterim agreement or a comprehensive agreement, the financial interest orbargaining position of the public or private entity would be adverselyaffected. In order for the records specified in clauses (i), (ii) and (iii)to be excluded from the provisions of this chapter, the private entity shallmake a written 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 publicentity, the records afforded protection under this subdivision shall continueto be protected from disclosure when in the possession of any affectedjurisdiction or affected local jurisdiction.
Except as specifically provided in subdivision 11 a, nothing in thissubdivision shall be construed to authorize the withholding of (a)procurement records as required by § 56-573.1:1 or 56-575.17; (b) informationconcerning the terms and conditions of any interim or comprehensiveagreement, service contract, lease, partnership, or any agreement of any kindentered into by the responsible public entity and the private entity; (c)information concerning the terms and conditions of any financing arrangementthat involves the use of any public funds; or (d) information concerning theperformance of any private entity developing or operating a qualifyingtransportation 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. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 etseq.), or confidential proprietary records that are not generally availableto the public through regulatory disclosure or otherwise, provided by a (a)bidder or applicant for a franchise or (b) franchisee under Chapter 21 (§15.2-2100 et seq.) of Title 15.2 to the applicable franchising authoritypursuant to a promise of confidentiality from the franchising authority, tothe extent the records relate to the bidder's, applicant's, or franchisee'sfinancial capacity or provision of new services, adoption of new technologiesor implementation of improvements, where such new services, technologies orimprovements have not been implemented by the franchisee on a nonexperimentalscale in the franchise area, and where, if such records were made public, thecompetitive advantage or financial interests of the franchisee would beadversely affected.
In order for trade secrets or confidential proprietary information to beexcluded from the provisions of this chapter, the bidder, applicant, orfranchisee shall (i) invoke such exclusion upon submission of the data orother materials for which protection from disclosure is sought, (ii) identifythe data or other materials for which protection is sought, and (iii) statethe reason why protection is necessary.
No bidder, applicant, or franchisee may invoke the exclusion provided by thissubdivision if the bidder, applicant, or franchisee is owned or controlled bya public body or if any representative of the applicable franchisingauthority serves on the management board or as an officer of the bidder,applicant, or franchisee.
14. Documents and other information of a proprietary nature furnished by asupplier of charitable gaming supplies to the Department of Agriculture andConsumer Services pursuant 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 § 3.2-1215.
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 or loan application, or accompanying a grantor loan application, to the Innovation and Entrepreneurship InvestmentAuthority pursuant to Article 3 (§ 2.2-2233.1 et seq.) of Chapter 22 of Title2.2 or 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, technological, or scholarly issues,when such information has not been publicly released, published, copyrighted,or patented, 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-owned, 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.
21. Documents and other information of a proprietary or confidential naturedisclosed by a carrier to the State Health Commissioner pursuant to §32.1-276.5:1.
22. Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 etseq.), including, but not limited to, financial records, including balancesheets and financial statements, that are not generally available to thepublic through regulatory disclosure or otherwise, and revenue and costprojections supplied by a private or nongovernmental entity to the InspectorGeneral of the Virginia Department of Transportation for the purpose of anaudit, special investigation, or any study requested by the InspectorGeneral's Office in accordance with law.
In order for the records specified in this subdivision to be excluded fromthe provisions of this chapter, the private or nongovernmental entity shallmake a written request to the Department:
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 Inspector General of the Virginia Department of Transportation shalldetermine whether the requested exclusion from disclosure is necessary toprotect the trade secrets or financial records of the private entity. TheVirginia Department of Transportation shall make a written determination ofthe nature and scope of the protection to be afforded by it under thissubdivision.
23. Records submitted as a grant application, or accompanying a grantapplication, to the Virginia Tobacco Indemnification and CommunityRevitalization Commission to the extent such records contain (i) tradesecrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.),(ii) financial records of a grant applicant that is not a public body,including balance sheets and financial statements, that are not generallyavailable to the public through regulatory disclosure or otherwise, or (iii)research-related information produced or collected by the applicant in theconduct of or as a result of study or research on medical, rehabilitative,scientific, technical, technological, 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; and memoranda, staff evaluations, orother records prepared by the Commission or its staff exclusively for theevaluation of grant applications. The exclusion provided by this subdivisionshall apply to grants that are consistent with the powers of and infurtherance of the performance of the duties of the Commission pursuant to §3.2-3103.
In order for the records specified in this subdivision to be excluded fromthe provisions of this chapter, the applicant shall make a written request tothe Commission:
1. Invoking such exclusion upon submission of the data or other materials forwhich protection from disclosure is sought;
2. Identifying with specificity the data, records or other materials forwhich protection is sought; and
3. Stating the reasons why protection is necessary.
The Commission shall determine whether the requested exclusion fromdisclosure is necessary to protect the trade secrets, financial records orresearch-related information of the applicant. The Commission shall make awritten determination of the nature and scope of the protection to beafforded by it under this subdivision.
(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; 2007, cc. 374, 693; 2008, cc. 71, 102, 266, 387, 633, 689,736, 743; 2009, cc. 246, 311, 325, 765, 810, 869; 2010, cc. 310, 808.)
