Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
IN RE: Nick Comer/City of Maysville
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Maysville's denial of Mr. Nick Comer's October 19, 1992, request to inspect certain records in the City's custody. Those records are identified as "[a]ll proposals for hotel developments in the riverfront area of Maysville in conjunction with the Limestone Landing project." The disputed documents were tendered in response to a request for proposals which appeared in the September 11, 1992, Ledger Independent, and Mr. Comer's request was submitted after the October 13, 1992, deadline.
In a letter dated October 22, 1992, Mr. Dennis Redmon, Maysville City Manager, denied Mr. Comer's request. Relying on KRS 61.878(1)(g) and (h), now codified and hereinafter referred to as KRS 61.878(1)(h) and (i), Mr. Redmon maintained that "the sole proposal received by the City is preliminary, is subject to negotiation, has not been received or accepted by any final action of the City, and is therefore exempt from inspection under the Kentucky Open Records law." In support of his argument, he cited OAG 92-21 and OAG 84-90.
In response to this Office's request for additional information relative to this matter, Mr. Robert Zweigart, Maysville City Attorney, explained that the City of Maysville operates under KRS 424.260 and Chapter 138 of the City's Code of Ordinances, governing bidding and procurement. He indicated that only one proposal was submitted to the City in response to its September 11 request for proposals, and that the City had not accepted the proposal, but is currently "negotiating modifications of the proposal." Continuing, he noted that the City "may have to advertise for additional proposals on the same project, or a modified project." It is Mr. Zweigart's position that KRS 61.878(1)(h) and (i) authorize nondisclosure of the requested records:
[T]he advertisement was seeking development proposals which must necessarily be subject to negotiation to define and plan a final project mutually agreeable to the City and the developer. The project negotiations are preliminary to any final action by the City. The one proposal received is merely an outline of the project, without blueprints or specifications. It suggests financial aid from the City, but proposes no terms of such assistance. The City has not determined the amount or means of such assistance.
In Mr. Zweigart's view, OAG 91-21 is dispositive of this matter to the extent that the City of Maysville has offered no final incentive package by letter of intent or otherwise, and the proposal is therefore preliminary.
The issue presented in this open records appeal is whether the City properly relied on KRS 61.878(1)(h) and (i) in denying Mr. Comer's request for the proposals for hotel development in the riverfront area of Maysville tendered in response to the City's September 11 advertisement for bids. For the reasons set forth below, we conclude that the City failed to sustain its burden of proof relative to the invocation of these exceptions, and that it must promptly release the disputed documents.
This Office has consistently recognized that once bids or proposals are opened, they are subject to public inspection. OAG 80-327; OAG 84-284; OAG 89-31. These opinions typically deal with governmental units operating under the Kentucky Model Procurement Code, KRS 45A.005, et seq. The Code expressly provides that bids must be publicly opened at a time and place designated in the invitation for bids, and that each bid must be recorded and be open to public inspection, KRS 45A.365. Because the City of Maysville's competitive bidding ordinance 90 C-1, § 138.04, contains similar language, we believe these opinions are controlling. Section 138.04(A) provides, in part:
The public shall be given notice of the invitation for bids by newspaper advertisement in accordance with KRS Chapter 424 at least once, not less than seven nor more than 21 days before the date set for the opening of bids. The advertisement shall include the time and place the bids will be opened, and the time and place where the specifications may be obtained. The bids shall be opened publicly at the time and place designated in the invitation for bids. After bid opening, each bid, together with the name of the bidder, shall be recorded and shall be open to public inspection.
(Emphasis added.) Although the September 11 invitation for bids did not designate a time and place for public opening of the bids, we do not believe the City is relieved of its duty to make the proposal available for public inspection. Mr. Zweigart offers no explanation for this deviation from the City's competitive bidding ordinance. It is, however, apparent that the proposal has been opened, and should therefore be released for inspection.
Unlike KRS 45A.085 of the Model Procurement Code, KRS 424.260 does not authorize competitive negotiation nor does the City's competitive bidding ordinance. We are therefore unable to ascertain by what authority the City is negotiating modifications of the proposal submitted in response to its invitation for bids. We conclude that the City has failed to sustain its burden of proof relative to its invocation of KRS 61.878(1)(h) and (i).
This situation is clearly distinguishable from the facts presented in OAG 91-21. In that opinion, a request was made for records relating to financial incentives offered to an industrial prospect. This Office upheld the public agency's denial of the requested records because the only action which had been taken by the agency was the issuance of a letter of intent. That letter of intent did not represent final agency action, but was subject to negotiation until such time as final agreement was reached by the parties. The public agency had not solicited bids and its actions were therefore not governed by the Model Procurement Code or local competitive bidding laws. Mr. Comer does not seek access to a final incentive package or project negotiations. His request is limited to any proposals submitted in response to the City's September 11 advertisement for bids. We can see no reason why those documents should not be released.
The City of Maysville may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.