Secret Government: In NC, It’s Legal

Next month the NCDOT is scheduled to sign a 50 year contract with a private company to add toll lanes to I-77 through Lake Norman.  As we’ve reported previously, the public knows almost nothing about this plan.  We don’t know:

  •  Where drivers can access the toll lanes. Will they bypass Cornelius or Huntersville (probably not)? Once in the toll lane, will a driver have to stay on them all the way to I-85, thereby maximizing the toll (probably so)?
  • How drivers will access the toll lanes. Will there be dedicated center drop-down lanes? Will drivers crawling at fifteen mph have to merge with zippy lane customers barreling along at seventy?
  • How bad traffic is expected to become in the beleaguered four general purpose lanes
  • How much the tolls are expected to be

In early April we submitted a FOIA request along those lines and have made several follow up phone calls and emails. We even contacted the NC Attorney’s General office.  We’ve received nothing except the cut and paste we’ve posted here.

Our requests for information actually started over a year and a half ago. Back then the NCDOT told us they cannot comply because of the competitive bidding process.  But that process is now over- bids were received last March and NCDOT accepted a bid.  (As it turns out, it was the only bid.)

So there is no more competition nor will there be until 2067.  Yet, NCDOT refuses to release the most basic information.  Why?

Because they don’t have to.

But isn’t there a law that requires them to release public information? There is. That would be GS 132-1, North Carolina’s Public Records Law.  So how, you may ask, can they get away with keeping this all a secret?

Because they’re allowed to.  Another statute exempts public bids from being made public.

Here’s the exact wording:

NC GS 136-128.5 (c) Notwithstanding G.S. 132-1, bids and documents submitted in response to an advertisement or request for proposal under this Chapter shall not be public record until the Department issues a decision to award or not to award the contract. (1987, c. 380, s. 1; 1991, c.716, s. 1; 2012-78, s. 11.)

So the NCDOT doesn’t have to tell the public anything about the contractor’s proposals until after they’ve decided to award the contract. Note, however, that the statute doesn’t say anything about information the NCDOT has developed.

With this in mind, our FOIA request asked for NCDOT’s information, not the private contractor’s. Specifically, we requested NCDOT’s “Base Case” model they used to judge the proposals.  This included things like revenue and traffic projections.  Surely something developed by a public department should be public information, right?  Wrong.

Again, there’s a handy exemption:

 NC GS 136-128.5 (b) Analyses generated by the Department of Transportation’s Bid Analysis and Management System, including work papers, documents and the output of automated systems associated with the analyses of bids made by the Bid Analysis and Management System, are confidential and are not subject to the public records provisions of Chapter 132 of the General Statutes.

The reality is the NCDOT doesn’t have to tell the public anything about this contract- the details of the winning bid, their evaluation process, their traffic projections, their finances- until they are poised with pen in hand.

You might want to bring this up the next time a state-level politician waxes eloquent on transparency in government. In the meantime, we’re probably in for a rude shock sometime in June.  Of course, by then the 50 year contract will already be signed.