Published In April 2000
The Freedom of Information Act (FOIA), is a federal law that has opened up mountains of documents to public view. Agency rules and regulations, agency decisions, reports, studies, and masses of other information became "free," in a manner of speaking, to whomever wanted access. A number of states have adopted their own information acts, which permit disclosure of a state's "public" documents. For contractors, these federal and state statutes can serve as a valuable tool in obtaining information for controlling and managing contracts. Scope and use of the Federal FOIA Every federal "agency" must make available, on request, all of its records, subject to a number of exemptions. Those limitations generally are not pertinent to this discussion. "Agencies" include "any executive department, military department, Government corporation, Government- controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency . . ." The above-quoted list is extensive. For any contractor or subcontractor performing work for any of these agencies, access to their data can be enormously beneficial. For example, if you are doing work for the Corps of Engineers and want to know its claims procedures, you can request copies of the Corps' claims manuals. (Many of these and similar manuals are already available through the Government Printing Office.) For specific projects, you can obtain records of payments made and other records of the project itself. Through an information act, you can get the contractor's daily reports, weekly meeting minutes, shop drawing approvals, and correspondence between the contractor and the agency, including claims made and claims decisions. In the event of a dispute, this key to unlocking data can be extremely helpful. How do you get this key? Each agency is required by the law to prepare and make publicly available upon request reference material, or a guide for requesting records or information, from the agency. You pay for the documents you request, but the cost depends on the quantity and depth of research required by the agency. You can control these costs by submitting a well-drafted, limited inquiry. By statute, the government's charges "shall be limited to reasonable standard charges for document search, duplication, and review . . ." You can also request that files be made available, then do a search for the documents you want. FOIA Acts for states A number of states have adopted their own versions of freedom of information statutes. Finding them is not always easy. Rather than use the same nomenclature, the names of these statutes are anything but uniform. One state calls its law the "Right to Know Act," while another refers to it as the "Public Documents Act." There are other variations, too. In addition, the scope of each statute, and the exceptions to disclosure, are often unique to the state. In Pennsylvania, the official name is: "Title 65. Public Officers Chapter 3. Official Documents, Records, and Seals Inspection and Copying of Records." Within this statute "public record" includes accounts, vouchers, contracts (including supply contracts), and documents "dealing with the receipt or disbursement of funds by an agency . . ." The definition of "agency," though, is extremely broad and includes "any department, board or commission of the executive branch of the Commonwealth, any political subdivision, . . . any state or municipal authority. . . ." The main limitation in Pennsylvania is that access to documents is available only to citizens of the state. In Ohio, the statute identifies a "public record" as being "any record that is kept by any public office, including but not limited to, state county, city, village, township, and school district units. . . ." The Ohio and Pennsylvania statutes are two examples of the use of very different wording in similar laws. The great potential use of these statutes is the same as that under FOIA. You can find approved extras, schedules, claims by other contractors, consultants' reports, periodic reports, correspondence between the owner and the designer and construction manager, and more. Accessing non-government documents Even where a government project is not involved, there are now almost unlimited ways of getting some needed information. For publicly traded companies, access to Security and Exchange Commission filings is open to the public by computer, including quarterly and annual corporate filings. Many companies now post important and useful data on Web sites. For example, an automotive company's Web site includes information about its finances, the relationship among its subsidiaries, and other "sensitive" information. One excellent source for gaining access to everything from statues to property ownership by computer is Public Records Online, M. Sankey, J. Flowers, Jr. eds (Facts on Demand Press, 1999) (www.brbpub.com). This and other publications show you how to find out about real estate transactions, bankruptcies, liens, corporate filings, and more. A vast array of tools is at your disposal for acquiring essential data for your business. Ask your attorney to use these keys to unlock information that can help you make more informed decisions to avoid, or at least limit, your business risks. ITTIG, of Ittig & Ittig, P.C., in Washington D.C., specializes in construction law. He can be contacted at (202) 387-5508, e-mail: USBuildlaw@aol.com, or his Web site, www.ittig-ittig.com.