Request By:
Ms. Diane H. Smith
Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of March 28, 1989, Mr. Jamie Eiler, of A Moore Moving Services, Jeffersonville, Indiana, appealed your March 23, 1989, denial of his request for a copy of the Kentucky State Police bid file, for moving the Jefferson Regional Laboratory at Louisville, to its new location at the Jefferson Trade Center.
For reasons expressed below, inspection of certain documents you denied inspection of, must be permitted.
FACTUAL BACKGROUND
In late February or early March of 1989, your agency solicited quotations, bids, or proposals, for moving the lab's equipment and materials to a new location. The solicitations, as I understand it, were made by verbal requests by telephone to several moving firms. Several firms responded by sending a letter setting forth their respective bid, estimate, or proposal, for carrying out the move. A firm to carry out the move was selected on or about March 14, 1989.
A Moore Moving Services, of Jeffersonville, Indiana, was one of the unsuccessful bidders. Jamie Eiler, of the Moore firm, first requested access to the bid file on the move in question, by a telephone request to lab personnel in Louisville. He was referred to your office. In a March 22, 1989 letter to you (your log No. 89-123), Mr. Eiler asked that a copy of the bid file be sent. By letter of March 23, 1989, you denied his request. Your denial indicated the records sought were exempt from the Kentucky Open Records Law under KRS "61.878(g)(h)."
During a telephone conversation with you, and with State Police counsel Chris Johnson, it was indicated that the quotations or bids received in relation to this project are considered to be correspondence with private individuals, thus exempt under KRS 61.878(1)(g), and that a memorandum in the file was a preliminary one, exempt from public inspection pursuant to KRS 61.878(1)(h). Subsequently, pursuant to KRS 61.880(2), I requested and received from you, a copy of the documents contained in the file in question.
OPINION OF THE ATTORNEY GENERAL
Jamie Eiler, an employee of A Moore Moving Services, of Jeffersonville, Indiana, asked to be provided a copy of the bid file of the Kentucky State Police regarding quotations, bids, or estimates for moving equipment of a regional laboratory at Louisville, from one location in Louisville to another. His request was submitted after a firm to carry out the moving job had been selected.
The request was denied by letter of March 23, 1989, citing KRS 61.878(g)(h).
The file in question contained: (1) A State Police Memorandum dated March 10, 1989, bearing, in addition to typewritten information, several hand notations; (2) documents styled either as a bid, estimate, or proposal, from three moving firms, (3) a state policy/procedure sheet; (4) a copy of the A Moore/Eiler request for a copy of the file, and (5) a copy of the March 23, 1989 letter to Eiler denying the request.
During a follow-up telephone conversation with State Police counsel Chris Johnson, Mr. Johnson indicated, in substance, that the bids or quotations were withheld pursuant to KRS 61.878(1)(g) as correspondence with private individuals, and that the memorandum in the file was a preliminary one, withheld from inspection pursuant to KRS 61.878(1)(h).
KRS 61.878(1)(g) exempts from inspection, except upon order of a court of competent jurisdiction:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.
Subsection (h) of KRS 61.878(1), exempts from inspection, except upon order of a court of competent jurisdiction:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies are formulated or recommended.
The State Police Memorandum contained in the file in question, is clearly a preliminary one within the terms of KRS 61.878(1)(h), supra. Inspection of it may be properly denied pursuant to KRS 61.878(1)(h), absent an appropriate court order.
With regard to the bids, quotations, or proposals, however, these documents were submitted by or in the name of business firms, not private individuals, in solicitating state business. Accordingly, the bids, quotations or proposals cannot be considered as "correspondence with private individuals," within the meaning of KRS 61.878(1)(g). Inspection of these records, when requested after selection of a vendor, must be permitted. See for example, OAG 84-284.
Inspection of the policy/procedure sheet, request letter, and denial letter, must also be allowed. Mr. Eiler, however, presumably already has copies of the latter two items.
While Kentucky's Open Records statutes do not require that a copy of a file or other record be sent to a requesting party (OAG 83-204), the request involved here was treated by your agency in the manner of a request to inspect. The denial was issued as if a proper request - one to inspect records - had been made. This Opinion thus addresses the request as if it were a request to inspect reasonably identified public records.
To the extent the Kentucky State Police responded to the request for a copy of a file held by them, based denial upon a statutory exception, and furnished a copy of their denial to the Attorney General, they acted consistent with the provisions of KRS 61.870 to 61.884. Denials of inspection of public records, however, must, in accordance with KRS 61.880(1), briefly explain how an exception cited as a basis for denial, applies to a record withheld. This was not done.
Inspection of the records noted must be permitted. The State Police may, of course, simply furnish copies of the records indicated to the requesting party, without first requiring inspection.
Your agency, A Moore Moving Services, and Jamie Eiler, may have a right to appeal findings of this Opinion to the appropriate circuit court pursuant to KRS 61.880(5).
As required by statute, a copy of this Opinion is being sent to Mr. Jamie Eiler, A Moore Moving Services, 110 Bowling Avenue, Jeffersonville, Indiana 47130.