Request By:
Monte D. Gross, Esq.
Office of Legal and Legislative Services
Finance and Administration Cabinet
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Charles W. Brooks, Jr., Esq. has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect a certain record in your custody. He describes the record in question as the financial statement submitted by Industrial Air Conditioning, Inc., the successful bidder in connection with "Invitation to Bid No. ES-7-86, Full Preventive Maintenance and Emergency Service, Centrifugal Refrigeration Machines, Commonwealth Convention Center, Louisville, Kentucky."
Mr. Brooks had previously received copies of the bid responses, the original advertisement and other relevant material. He has not received the financial statement which he maintains he needs in connection with the filing of a protest by his client, Kentucky Air Conditioning, against the awarding of the contract to Industrial Air Conditioning, Inc.
In your letter to Mr. Brooks, dated July 23, 1985, you stated in part that it is the long-standing policy of the Finance and Administration Cabinet to view vendor financial information as proprietary and, therefore, confidential. You also stated that Industrial Air Conditioning, Inc. has secured a payment and performance bond, an indication of financial responsibility. Furthermore, Industrial Air Conditioning, Inc. has sufficiently met the financial responsibility criteria to be awarded the contract and is technically adequate insofar as you can determine.
Contrary to the provisions of the Open Records Act [KRS 61.880(1) and (2)], your letter denying the request to inspect the document in question did not state the specific exception relied upon to withhold the document and a copy of your written response denying inspection of the public record was not sent to this office.
OPINION OF THE ATTORNEY GENERAL
This Office has on several occasions through the years dealt with bidding and the bidding process relative to the Open Records Act. We said, for example, in OAG 84-284, copy enclosed, that the bid invitation, correspondence pertaining to the bids and the bids themselves are public records subject to the Open Records Act. The bids themselves and records which identify the bid or bidder individually would not be open to public inspection, however, until the bids were publicly opened. See also KRS 45A.080(4) relative to the public inspection of bids received under the competitive sealed bidding process.
What makes this situation unique and something which this Office has not dealt with before is the presence of the financial statement of the corporation with the other materials pertaining to the bid. The financial statement would appear to include personal financial data of the corporation.
In dealing with the public inspection of material relating to city occupational license applications, we said in part in OAG 84-93, copy enclosed, that information which reveals the affairs of the business such as profits, taxes, deductions and salaries would be exempt from public inspection. Whether such information in this case is expressly exempted from public inspection by statute we cannot say. Note, however, that KRS 45A.110 provides in part that information furnished by a bidder relative to the responsibility of the bidder may not be disclosed outside of the Division of State Purchasing or the purchasing agency administering the contract without the prior written consent of the bidder. If that statute is applicable then the exemption in KRS 61.878 (1)(j) is applicable. KRS 61.878(1)(j) provides that public records or information, the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly, are excluded from the application of the Open Records Act and subject to inspection only upon an order of a court of competent jurisdiction.
In addition, among the other public records excluded from the application of the Open Records Act and subject to inspection only upon an order of a court of competent jurisdiction, are public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. See KRS 61.878(1)(a). The inspection by the public of a bidding corporation's financial statement even if it was not submitted pursuant to KRS 45A.110, would constitute an invasion of privacy under KRS 61.878(1)(a) to the extent that the statement relates to the bidding corporation's personal financial data.
Resolving the question of whether a clearly unwarranted invasion of personal privacy has occurred or will occur requires a balancing of interests between the public's right to know and the right of persons to their privacy. Balancing those interests in this particular factual situation precludes in our opinion the public inspection of the document in question.
Before concluding we direct your attention and that of the requesting party to OAG 82-280, copy enclosed, where we said in part that a public record is either open to public inspection by any person or it may be withheld from all persons under one of the exceptions set forth in KRS 61.878. This often means that the Open Records Act cannot be used in lieu of discovery procedures provided by the Rules of Civil Procedure.
Thus, it is the opinion of the Attorney General that your denial of the request to inspect the financial statement submitted by a private corporation relative to a request for bids by a state agency was proper under the Open Records Act whether or not the document was submitted pursuant to the requirements of a state statute.
As required by statute a copy of this opinion is being sent to the requesting party who has the right to challenge it in court pursuant to KRS 61.880(5) .