Editor's note:
Several changes were made in 2017 that affect other aspects of the Freedom of
Information Act.
The economic development exemption to the state's Freedom of Information Act includes several exemptions that allow public bodies to keep certain information confidential during project negotiations.
Why is confidentiality important to your community when working on economic development projects?
- Your site may be eliminated if a prospect believes confidentiality is not maintained.
- You may invite unwanted competition from other communities interested in the same project.
- Your reputation for being able to maintain confidentiality may affect your city's ability to attract quality projects in the future.
What are the economic development exemptions in the FOIA?
- Working papers related to the project during the recruiting process including email
- Proposed contracts and incidental documents (including any "confidential proprietary" information companies may provide to a public body)
- Trade secrets which include unpatented, secret, commercially valuable plans, formulas or processes generally recognized as confidential. For public bodies that market services or products in competition with others, trade secrets also include feasibility, planning, and marketing studies; marine terminal service and nontariff agreements; and evaluations and other materials that reference potential customers or competitive information.
When are disclosures required, and what public records are not exempt?
- After incentives are accepted and a company announces or when the incentive agreement is finalized, whichever occurs later. Typically, a company's execution of a final incentive agreement constitutes acceptance of the incentive.
- Documents incidental to a proposed contract (e.g., application for incentives and cost benefit).
- Trade secrets and confidential proprietary information of a company are never required to be disclosed and may be redacted from otherwise nonexempt records.
What are an elected official's responsibilities during the recruitment process?
- Maintaining confidentiality throughout the recruitment process
- Maintaining confidentiality regarding the project even if your community has been eliminated from consideration
- Educating others involved about when discussion of a project is appropriate
- Waiting until after the project is announced to discuss details of a project within the parameters allowed by law.
Information for this article was provided by Karen Manning, chief legal counsel at the SC Department of Commerce. Presented to the SC Economic Developers Institute in August 2012.