Request By:
Mr. Thomas B. Fiorini
Economic Development Director
City of Covington
18 West Pike, Old Town Plaza
Covington, Kentucky 41011
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Mike Farrell has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy certain records which are or were in the custody of the city.
In a letter to you dated March 9, 1987, Mr. Farrell requested that he be permitted to review all bids received by the city for the renovation of the railroad depot at Pike and Russell Streets.
In your letter to Mr. Farrell, dated March 12, 1987, you advised him that his request was denied. You relied in part upon the reasons set forth in a letter to you from Joseph T. Condit, Esq., the City Solicitor, dated March 12, 1987. You further stated in your letter to Mr. Farrell that the city received only one proposal within the specified time period. No other proposals were accepted and the contents of the accepted proposal were publicly disclosed. You further advised Mr. Farrell that he could review the Development Agreement for the Railroad Depot after an agreement was executed.
Mr. Condit's letter to you of March 12, 1987, which was made available to Mr. Farrell, concluded that Mr. Farrell's request must be denied. In support of that determination, Mr. Condit cited the exceptions to public inspection set forth in KRS 61.878(1)(c) and (g). Mr. Condit also said that various proposals had been submitted to the city by prospective developers who were interested in locating within the city and they were submitted as part of a competitive negotiation process. The proposals submitted constitute correspondence with private persons that do not give notice of final action of an agency. The city would be hampered in its efforts to negotiate with the selected developer if the contents of the other proposals were made known. In addition, certain documents contained in the proposals might be exempt from public inspection pursuant to the exceptions set forth in KRS 61.878(1)(b) and (d). When the city takes final action on the proposal and enters into a contractual arrangement with the developer, the information relating to that final action is public information and must be disclosed.
In his letter of appeal to this office Mr. Farrell states that he had requested permission to inspect all bids received by the city relative to the renovation of the railroad depot. The city received one proposal prior to the deadline set in the legal advertisement and it was made public. However, the city received three other proposals after the deadline, one of which you opened. Mr. Farrell questions Mr. Condit's interpretation that the proposals (presumably the three submitted after the deadline but also, perhaps, the one submitted prior to the deadline and tentatively accepted) qualify under either exception to public inspection set forth in his letter of March 12, 1987.
The undersigned Assistant Attorney General talked with you by telephone on March 26, 1987, and with Mr. Condit by telephone on March 25 and 26, 1987. As a result of those telephone conversations several facts emerged as relevant, at least to me. The city advertised for the submission of proposals relative to a development project involving the railroad depot. One proposal was timely submitted and three proposals were untimely. The city tentatively accepted the timely proposal and while one or more of the untimely proposals were opened they were not considered in regard to the railroad depot project. No contract has been signed at this time relative to the project and while the timely proposal was tentatively accepted the city is engaged in a competitive negotiation process and many of the specific details of the project remain unresolved at this time. The project involves to some extent funds made available through HUD and the city is proceeding pursuant to procedures authorized and approved by HUD. You advised that the contents of the timely proposal have been made known and the timely proposal in its original version would be made available for inspection, with some exceptions, to Mr. Farrell.
OPINION OF THE ATTORNEY GENERAL
This office has stated in several prior opinions (see, for example, OAG 84-284, a copy of which is enclosed) that documents which identify the bid or bidder individually and with specificity need not be opened to public inspection until after the bids are publicly opened. Those opinions, however, were based upon the assumption that bids were timely received as part of the competitive bidding process and that the public agency would select one of the bids or reject all the bids.
In the situation presented by Mr. Farrell's appeal three of the proposals were not timely received and were not considered by the city or its officers or employees in connection with the railroad depot redevelopment project. While it appears that at least one of the untimely proposals was opened by the city, merely opening the untimely proposal, when the city never considered it on its merits relative to the railroad depot redevelopment project, does not make the proposal a public document and a part of the bidding and negotiation process subject to public inspection and copying.
Among the public documents which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(g):
"Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
Thus, even though the city may have retained for some portion of time the three untimely proposals and even opened one of those proposals, the city never considered them on their merits in connection with the railroad depot redevelopment project. Those proposals are not part of the bidding and negotiation process for that project and can be considered as a kind of correspondence with a private party which could be properly excluded by the city from public inspection pursuant to KRS 61.878(1)(g). See OAG 87-4, a copy of which is enclosed.
Even the timely proposal which was tentatively accepted has not yet resulted in a binding contractual obligation between the city and a developer. Proceedings are being conducted pursuant to a process of competitive negotiation with many of the specifics yet to be resolved. While the city is apparently not proceeding under a state statutory provision relative to competitive negotiation, it is proceeding pursuant to a process approved by HUD. The negotiation process has not been completed and thus there is no final document or decision at this time relative to the railroad depot redevelopment project. The process is still in its preliminary stages.
We construe the situation involved here as part of a continuing or ongoing process of competitive negotiations between the city and the party submitting the timely proposal. See OAG 85-68, copy enclosed. Perhaps there are applicable federal statutes and regulations restricting the release of information during such negotiations which would bring into play the provisions of KRS 61.878(1)(i), to the effect that records may be withheld from public inspection if disclosure is prohibited by federal law or regulation. In any event, the records and documents involved with an ongoing competitive negotiation process would be preliminary pending the final resolution of the matter and the adoption of a contract between the parties involved. The provisions of KRS 61.878(1)(g) relative to the nondisclosure of documents have already been cited and KRS 61.878(1)(h) is also applicable. That section states that among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described as:
"Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
It is, therefore, the opinion of the Attorney General that the city can deny a request to inspect records involved with an ongoing competitive negotiation process pursuant to KRS 61.878(1)(g) and (h). However, the city is required to make available for public inspection those records associated with the competitive negotiation process, which are not otherwise precluded from inspection, at the conclusion of the competitive negotiation process.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Mike Farrell, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).