In the confidentiality agreeement CCA and VLCIA signed way back on 17 August 2009, I see nothing that says the Industrial Authority can’t talk about CCA in general terms. And I see a lot of things that a governmental entity by state law can’t hide if the public requests them. And that VLCIA has now revealed. Which means the Industrial Authority has violated that agreement because state law required it to. So what does that say about the validity of other contracts VLCIA has signed with CCA? And what does it say about the practice of this governmental entity signing confidentiality agreements?

That agreement includes this legal boilerplate:

it will use any confidential, proprietary, or trade secret information to which it has access solely for the purpose set forth herein and that it will indefinitely protect the confidentiality of such information and will not directly or indirectly disclose, reproduce, distribute, transmit or transfer by any means in any form any confidential documents, information and/or trade secrets that AUTHORITY may have or acquire during the Evaluation Period.

There’s nothing in there that says VLCIA can’t even say in their board meetings that Project Excel is a private prison for CCA. And outside board meetings, some board members have no reluctance to acknowledge that.

Confidentiality agreements like that are normal between two business entities. They seem a little odd between a business entity and a governmental agency. For example, that Agreement continues:

For purposes of this Agreement, “confidential, proprietary, or trade secret information” includes, but is not limited to, marketing materials, conceptual site drawings and images, form contract agreements, the identities of business contacts and the relationships developed with such contacts during the Evaluation Period, proposed terms of purchase and sale, if any….

Yet many of those things are by their nature public records that VLCIA is required to hand over in response to an open records request, such as the one Matt Flumerfelt made which produced documents such as these:

Marketing materials

CCA Brochure

Conceptual site drawings and images

• Public record survey map in EXCEL (CCA) Title-Survey Objections (Reno-Cavanaugh)
• Conceptual site layout in EXCEL Econ Incentive Proposal (Valdosta-Lowndes County, GA)

Form contract agreements

• The confidentiality agreement itself is a public record because it was made with a tax-funded governmental entity.
• as is this EXCEL Land Sale-Purchase Agreement (Bassford)

Identities of business contacts

Frank Betancourt, Vice President, Real Estate

and the relationships developed with such contacts during the Evaluation Period

Prepared Remarks for Frank Betancourt and Jay Hollis recognizing numerous specific named elected and appointed officials of the state and local governments for their assistance with the project.

Proposed terms of purchase and sale

Purchase and Development Agreement

So the Industrial Authority has just violated every single example in the confidentiality agreement of things not to reveal. And every one of those newly-revealed documents is a public record, so VLCIA was required by law to reveal them upon request. Which means VLCIA signed a confidentiality agreement it could not, by law, honor. And that it has been hiding behind for two years.

Now that the Industrial Authority has thoroughly violated that confidentiality agreement, does that mean the deal is off? After all, we’re still in the Evaluation Period, because there’s been no closing. At least according to the documents returned by VLCIA. Maybe we need to file another open records request specifically for that document, just in case they forgot.

And maybe we the public should regularly file open records request for every project VLCIA is working on, so we’ll know what else may be creeping up on us.

-jsq

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