Request By:
Mr. Ed Burtner
Winchester City Manager
City Hall
Winchester, KY 40391
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Ernest Phillips, President of the Winchester Fraternal Order of Firefighters, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody. Specifically, Mr. Phillips made a request on June 6, 1984 to review "all material, correspondence, and transactions received by the City of Winchester concerning Contract Fire Service and Contract Fire Service bids. " Another request was made June 22, 1984 for "all correspondence or publications sent or received by the City of Winchester relating to Contract Fire Service."
You denied Mr. Phillips' requests based on KRS 61.878(1)(g) which exempts from public inspection those records constituting agency "correspondence with private individuals."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was improper under the Open Records law.
Apparently the Winchester City Commission recently authorized private companies to bid for a contract to provide fire protection for the city. The private company chosen from the bidding process would replace the present Winchester Fire Department.
The Kentucky Model Procurement Code defines the bidding processes for local governments as regards contracts or purchases. KRS 45A.350. Local public agencies are allowed to adopt their own provisions, provided that such provisions are not inconsistent with the Code. KRS 45A.360. The adoption of the Code is, however, optional with local agencies. OAG 80-279. In any event, regardless of which option the local agency chooses, notice of the invitation for bids is to be given by newspaper advertisement. KRS 45A.365(3); 424.260. Then, once the bids are opened at the time and place designated in the invitation, the bids are open to public inspection. KRS 45A.365(4).
As documentary material retained by a public agency, the bid invitation, correspondence pertaining to the bids, and the bids themselves are public records subject to the Open Records law. KRS 61.870. Unless exempted by the provisions of KRS 61.878, these records are open to public inspection. The bid invitation, published as a newspaper advertisement, is obviously open to inspection. The bids, subject to KRS 61.878(1)(b), are also open to public inspection once publicly opened. KRS 45A.365(4).
The request for inspection herein, however, specifically pertained to materials, correspondence, and transactions which were sent or received by the city in regard to Contract Fire Service. Due to the fact that the purpose of sealed competitive bidding is "public competition" and "bid comparison," and due to the fact that bids and the identity of bidders are not statutorily open to inspection until publicly opened, it is our opinion that the general assembly contemplated that any records which identified the bid or bidder individually and with specificity would not be open to public inspection until the bids were publicly opened.
As directed by statute, a copy of this opinion is being sent to the requestor. KRS 61.880(5) provides that you may initiate further proceedings should you decide not to comply with this opinion.