Request By:
IN RE: D. Scott Miller/City of Paducah Finance Department
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Paducah Finance Department's denial of Mr. D. Scott Miller's June 26, 1992, request to inspect certain records in the Department's custody. Mr. Miller represents Ericsson GE Mobile Communications, Inc. In October, 1991, Ericsson submitted an unsuccessful proposal to the City of Paducah in response to a Request for Proposals for an 800 MHZ Trunked Radio Communication System. The City ultimately accepted a proposal submitted by Motorola Communications Inc., one of Ericsson's competitors. The City is currently engaged in contract negotiations with Motorola, but as of the date of this appeal no contract has been executed.
The records which are the subject of this appeal are identified as:
1. [The] Motorola proposal in its entirety.
2. All correspondence to/from City of Paducah and representatives of Frederick G. Griffin, P.C., and Motorola, pertaining to this proposal from the time the solicitation was sent to vendors until the present time.
3. A copy of all minutes of any meeting between Motorola, the City of Paducah and Frederick G. Griffin, P.C.
4. A copy of Frederick G. Griffin's evaluation/recommendation of the Motorola proposal.
5. A copy of Frederick G. Griffin's evaluation/recommendation of the Ericsson GE proposal.
6. A copy of all the minutes of all meetings of the Trunked Telecommunication Committee of the City of Paducah/McCracken County, including the written recommendation of this committee to the City of Paducah/McCracken County.
7. A copy of recent tower bid and results.
In a letter dated July 15, 1992, Mr. William K. Shannon denied Mr. Miller's request. In response to Mr. Miller's request for the Motorola proposal, Mr. Shannon asserted that the proposal contained information which was confidentially disclosed to the City, and was therefore excluded from the application of the Open Records Act by KRS 61.878(1)(b). 1 It was his position that the proposal is comprised, at least in part, of "secrete [sic] commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles of [sic] materials which are trade commodities obtained from a person[.]" He noted that the City had not yet taken final action in the matter, but that upon final action, the City would produce records the disclosure of which is mandated by the Open Records Act. -
With respect to the records identified in paragraphs 2, 4, and 5 of Mr. Miller's request, Mr. Shannon argued that the correspondence between the City, Motorola, and the City's technical advisor, as well as the technical advisor's evaluations and recommendations vis-a-vis Ericsson and Motorola's proposal, represented "preliminary drafts, notes, and correspondence with private individuals and/or preliminary recommendations and preliminary memoranda in which opinions are expressed." He therefore declined to release the records pursuant to KRS 61.878(1)(g) and (h), now codified as KRS 61.878(1)(h) and (i).
Although he did not cite the specific exceptions authorizing nondisclosure, he also denied Mr. Miller's request for "the recent tower bid and results." Again, Mr. Shannon indicated that the City had not taken final action on the bids, and that the documents therefore would not be produced.
Finally, Mr. Shannon advised that the records identified in paragraphs 3 and 6 of Mr. Miller's request consisting of the minutes of meetings between Motorola, the City, and its technical advisor, as well as the minutes of meetings conducted by the City's Trunked Telecommunications Committee did not exist, and could not be produced.
Pursuant to KRS 61.880(2), this Office requested additional documentation from the City's Finance Department in the form of a more detailed explanation of how the cited exceptions apply to the documents withheld, pursuant to KRS 61.880(2). We afforded the same opportunity to Mr. Miller, asking that he advise us of his specific objections to the City's denial of his request.
In a letter dated August 28, 1992, Gale Clark, a sales agent employed by Ericsson, responded to our request. Mr. Clark directed our attention to paragraph 14 of a document styled "City of Paducah, General Terms and Instructions to Bidders. " That paragraph provides, "All bids will be opened at the time and place specified and read publicly and remain available for public inspection in the Purchasing Office. . . ." In addition, he noted that paragraph 2.7.2 of the City's Request for Proposal states that "once awarded the contract will become public record. " In closing, he observed:
Both Ericsson GE and Motorola responded to a public procurement that clearly contained statements in the City's own specifications that the information would be 'available for public inspection' and 'become public record' . No detailed equipment schematics, secrete [sic] plans, formulae or processes were required to be submitted with the proposal.
He thus argued strenuously for release of the records.
On behalf of the City of Paducah, Mr. Shannon responded to our request on September 1, 1992. Mr. Shannon briefly described the background leading up to the opening of the bids on October 4, 1991. He explained that each proposal was organized into the following parts: administrative, system design, units, product literature, installation and service, pricing, and insurance and bonding. Continuing, he observed:
The City of Paducah submits to the Attorney General's Office that the proposal prepared and submitted by Motorola . . . contains, at least in part, information marked confidential and proprietary, the disclosure of which would provide its competitors an unfair commercial advantage. The proposal contains specific detail with regard to items of equipment to be utilized to implement the overall system, site selections, charts, maps, diagrams, etc. -- all of which appear to have been especially designed and prepared by Motorola for the purpose of carrying out the City of Paducah's objective.
Mr. Shannon notes that it is his understanding that Paducah is the first city in the state to acquire an 800 MHZ radio communication system for public safety use. Therefore, he argues that the system developed and implemented based upon the RFP might serve as a prototype for similar systems which may be developed in other locations across the state. Accordingly, "Motorola has marked a substantial part of its proposal confidential and proprietary, especially with reference to system design, technical specifications and pricing information." Relying on KRS 61.878(1)(c)1., he maintains that Motorola's proposal is exempt from disclosure.
The issue presented in this appeal is whether the City of Paducah's Finance Department violated the Kentucky Open Records Act in denying Mr. Miller's request for various documents related to its RFP for an 800 MHZ radio communication system pursuant to KRS 61.878(1)(c)1.b., (h), and (i). With respect to Mr. Miller's request for a copy of Motorola's proposal, in its entirety, we find that the City properly denied him access to those portions of the proposal marked confidential and which are generally recognized as confidential or proprietary, including secret commercially valuable plans, appliances, formulae, or processes, the disclosure of which would permit an unfair advantage to Motorola's competitors.
We reach a similar conclusion relative to his denial of the records identified in paragraphs 3 and 6. If no documents exist which satisfy this portion of Mr. Miller's request, the City obviously cannot produce them.
Finally, we find that the City properly relied on KRS 61.878(1)(h) and (i) in denying Mr. Miller access to "[a]ll correspondence to/from [the] City . . . and representatives of Frederick G. Griffin, P.C., and Motorola, pertaining to [Motorola's] proposal from the time the solicitation was sent to the vendors until the present," as well as Mr. Griffin's "evaluation/recommendations of the Motorola . . . and Ericsson GE proposal[s]," to the extent that these documents represent preliminary drafts, notes, recommendations, and memoranda in which opinions are expressed or policies formulated or recommended. These exceptions also authorize the nondisclosure of the tower bids since no final action has been taken on the bids. The City must, however, release any documents, such as the notification of the award of the contract to Motorola, which represent final agency action, and any preliminary documents incorporated therein.
Mr. Miller requests access to the Motorola proposal in its entirety. Citing the "General Terms and Instructions to Bidders" and the RFP for the communications system, he maintains that the City's own specifications state that the proposal is a public record which must be made available for inspection. We begin by noting that the document styled "General Terms and Instructions to Bidders" is prefaced by the following admonition to vendors:
The general rules and conditions which follow apply to all purchases and becomes a definite part of each formal solicitation and resulting purchase or other award issued by PURCHASING OFFICE, unless otherwise specified.
Page 1 of 11. The subject RFP specifies in bold type, at page 4 of 78, "The proposals will not be publically [sic] read, however, once awarded the contract will become public record. " (Emphasis added). Hence the RFP "otherwise specifie[s]" that although the contract is to be treated as a public record, the proposal itself will not be publicly read, thus removing it from the general rules and conditions set forth in the "Instructions to Bidders. " We are therefore not persuaded that the RFP mandates release of the Motorola proposal.
This Office has dealt with the issue raised in this appeal in a number of prior opinions. In OAG 83-256, we recognized that a proposal submitted in response to an RFP for an automated certification and issuance system for the food stamp program administered by CHR contained material in which the entity submitting the proposal had a proprietary interest within the meaning of KRS 61.878(1)(c), formerly codified as KRS 61.878(1)(b). At page 6 of that opinion, we noted:
The technical proposal describes in particular the various items of equipment which will be used in performing the services, discloses the personnel which will be relied upon and includes biographic information of individuals in the employ of the company, contains charts, maps, diagrams -- all of which has been especially designed and organized for the purpose of carrying out the objectives of the Department of Social Insurance in accordance with the RFP. . . .
It is our opinion that the RFP supplies sufficient information about the Food Stamp Program to satisfy the needs of the public in a general fashion. As we have already stated, the RFP is open to public inspection.
See also, OAG 83-302 (adopting the reasoning of OAG 83-256).
Similarly, in OAG 88-1 we held that a bid proposal submitted in response to an RFP issued by the Finance and Administration Cabinet, Division of Purchases, contained secret commercially valuable plans and formulae which if openly disclosed would permit an unfair advantage to competitors of the entity submitting the proposal, including consolidated financial statements, project narratives, summary experience charts, work plans, and pricing schedules.
In each of these opinions we recognized that, unlike the typical advertisement for bids in which the agency states firm specifications to be met by the contractor, in an RFP the agency states its objectives and requests that the bidders propose a plan, which includes the method and equipment to be used, and that the bidders demonstrate that they have the personnel and capability to accomplish the objective. Although KRS 45A.080(4) makes all bidding documents open to public inspection, we have expressed the view that the legislature did not contemplate RFP bids in enacting this statute, only bids on advertised specification. OAG 83-256, at p. 4. Thus, as a rule of general application, the RFP stating the objectives to be accomplished and the resulting contract, including end bid prices as distinguished from "costing and pricing strategy," OAG 89-44, at p. 3, are public records which must be made available for inspection, but the underlying proposal may be exempt if it falls within the parameters of KRS 61.878(1)(c)1.
That statute authorizes the nondisclosure of:
Records confidentially disclosed to an agency, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records, and which are compiled and maintained:
* * *
b. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person[.]
As noted above, Mr. Shannon indicates that Motorola's proposal contains specific detail relative to items of equipment to be used in implementing the systems, as well as site selection, charts, maps, and diagrams which were designed and prepared by Motorola for the purpose of carrying out the City's objectives. It is his belief that the system might serve as a prototype for similar systems elsewhere, and that Motorola therefore has a proprietary interest in the proposal such that disclosure would provide its competitors with an unfair commercial advantage. We believe that Mr. Shannon has demonstrated that the proposal falls within the parameters of KRS 61.878(1)(c)1.b., and that the City properly denied that portion of Mr. Miller's request.
Turning to the issue presented in this appeal relative to the minutes of the meetings identified in paragraphs 3 and 6 of this open records request, we find that the City properly advised Mr. Miller that no such records exist, and that they therefore could not be produced. This Office has consistently recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112. A request for such documents is moot. OAG 88-44. We have also recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. OAG 86-35. As we observed in OAG 86-35, at p. 5, "This office is a reviewer of the course of action taken by the public agency and not a finder of documents or possible documents for the party seeking to inspect such documents."
As a separate matter, we note that the Open Meetings Act requires a public agency to record the minutes of action taken at every meeting at KRS 61.835. Since the Trunked Telecommunications Committee of the City of Paducah might fall within one of the definitions of "public agency" found at KRS 61.805(2)(e), (f), or (g), its failure to record minutes of actions taken at its meetings may constitute a violation of the Open Meetings Act. If Mr. Miller wishes to raise this issue, he may do so in a separate appeal pursuant to KRS 61.846.
With respect to the records identified in paragraphs 2, 4, and 5, consisting of correspondence between the City, Motorola, and the City's technical advisor, in addition to the advisor's evaluations and recommendations of the Motorola and Ericsson GE proposals, we find that the City properly denied Mr. Miller access to those records which were properly characterized as preliminary pursuant to KRS 61.878(1)(h) and (i), but improperly withheld those records which represented the City's final decision in selecting Motorola, and any documents incorporated therein.
This Office has previously recognized that as a general rule:
[D]ocumentary 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.
OAG 84-284, at page 2. While we find that in the present appeal the proposal submitted by Motorola is exempt from public inspection pursuant to KRS 61.878(1)(c)1.b., we do not believe that all correspondence pertaining to the proposal may be treated as preliminary, or that it may be properly characterized as correspondence with a private individual.
In OAG 90-7, at page 4, we observed:
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. Such a contractor, in our view, loses any character of a 'private individual,' as such phrase is used in KRS 61.878(1)(g) [now 61.878(1)(h)], that the contractor might be said to have, in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract.
It is the opinion of this Office that any correspondence between the City, Motorola, and the City's technical advisor which represents final action by the City, and any preliminary documents which are adopted as part of its final action, must be released to Mr. Miller. City of Louisville v. The Courier-Journal & Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992); OAG 83-41; OAG 89-69; OAG 91-90. Kentucky courts, as well as this Office, have thus recognized that documents which were once preliminary in nature lose their exempt status under the Open Records Act it they are adopted by the agency as part of its action. If the City's technical advisor's evaluation/recommendation relative to either the Motorola or the Ericsson GE proposal were adopted by the City as part of its final action, those documents must also be released. If they were not adopted, the City may properly withhold them as "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)(i).
While we have not been presented with the specific background surrounding the records relating to the "tower bids" identified in paragraph 7 of Mr. Miller's request, Mr. Shannon states that no action has been taken in this matter. By this we assume he means no vendor has been selected. We believe the tower bids and results may be withheld until a vendor has been chosen pursuant to KRS 61.878(1)(h) and (i). See, e.g., OAG 89-31.
In sum, we find that the City properly withheld the proposal submitted by Motorola in response to its RFP for an 800 MHZ Trunked Radio Communications System under authority of KRS 61.878(1)(c)1.b. In addition, Mr. Shannon properly advised Mr. Miller that his request for access to the minutes of meetings between the City, Motorola, and the City's technical advisor, as well as minutes of meetings of the Trunked Telecommunication Committee, could not be honored inasmuch as no such records exist. Finally, we find that the City properly denied Mr. Miller's request for all correspondence between the City, Motorola, and the City's technical advisor which may be characterized as preliminary, pursuant to KRS 61.878(1)(h) and improperly (i), but improperly denied him access to correspondence which represents its final action in the matter, as well as preliminary documents adopted therein. This includes the evaluation/recommendations prepared by the City's technical advisor. If either or both of the evaluations were incorporated into the City's final action, it or they must be released. If not so incorporated, the City may withhold them under KRS 61.878(1)(i). Since no final action has been taken relative to the tower bids, the records requested by Mr. Miller in paragraph 7 were properly withheld.
Mr. Miller and the City may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes
1 KRS 61.878(1)(b) was amended in the 1992 General Assembly, and the language of the exemption slightly modified. It is now codified as KRS 61.878(1)(c)1., and provides:
Records confidentially disclosed to an agency, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records, and which are compiled and maintained:
* * *
b. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person[.]
* * *
b. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person[.]
b. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person[.]