Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Kenneth W. Hawes, a representative of E & K Microfilming, to Mr. John B. Nichols, Boyle County Clerk, on December 13, 1993. Mr. Hawes requested access to "all bid proposals received in [Mr. Nichols'] office pertaining to microfilming that were due no later than December 7, 1993." In a letter dated December 14, 1993, Mr. Nichols denied Mr. Hawes's request, advising him that the requested records are exempted from the application of the Open Records Law by operation of KRS 61.878(1)(h). He explained that the bid proposals are part of a Legal Records Grant application, and are preliminary documents until final action is taken by the Kentucky Department for Libraries and Archives.
In a followup letter to this Office, Mr. Nichols elaborated on his position:
The documents in question are a required part of a Local Records Grant application I have submitted to the Kentucky Department for Libraries and Archives requesting fiscal 1994-95 grant funds to microfilm for security certain permanent records in this office . . . . Local Records Grant Applications for any fiscal year funds are normally considered at either the March or the June meeting of the State Archives and Records Commission prior to the start of the fiscal year in July. Recommendations of that group are given to the KDLA
Commissioner who actually approves the grants. As stated in the Invitation for Bid Proposal Document . . ., selection of an offerer and notification of the award is not made until the grant is approved and money is made available.
Mr. Nichols maintains that the requested records "are part of an ongoing application process which may or may not result in a contract award," and are therefore preliminary in nature. They are not, he explains, part of a normal county procurement bid invitation.
We are asked to determine if the Boyle County Clerk properly denied Mr. Hawes' request. For the reasons set forth below, we conclude that Mr. Nichols acted consistently with the Open Records Law in denying that request.
KRS 61.878(1)(h) excludes from public inspection,
(h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]
Although this Office has consistently recognized that once bids or proposals are opened, they are not exempt from inspection under this exception, these opinions typically deal with governmental units operating under the Kentucky Model Procurement Code, KRS 45A.005, et seq. See e.g., OAG 80-327; OAG 84-284; OAG 89-31; 93-ORD-5. 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. However, as Mr. Nichols observes, the invitation for bids which is at issue in this appeal was not conducted under "normal county procurement" policies and procedures.
Were this a typical solicitation for bids under the Model Procurement Code, resolution of the issue presented would be a simple matter. The solicitation for bids would have indicated a date and time certain when the bids would be opened and publicly read. In this appeal, there are no such bright lines. Applications for Local Records Grants "must be accompanied by at least two written, itemized bid proposals for each project segment." "Public Records Assistance for Kentucky Local Governments - A Statewide Program," p.2. Although the applicant for the grant may express a preference for a vendor, the vendor is not selected or notified of its selection until after the grant is approved by the Department. "Kentucky Local Records Grant Program-Application Instructions," p. 1. Thus, the Invitation for Bid Proposal states, at numbered paragraph nine, that the "Selection of a bid proposal is contingent upon the award of the Local Records Grant and subsequent availability of state funds."
Mr. Nichols states that the application process is "ongoing. " We assume that this means that the Department for Library and Archives has not approved his office's application for a Local Records Grant. Until the application is approved and a vendor is selected, we believe that the bids are preliminary in character, and may properly be withheld pursuant to KRS 61.878(1)(h). We therefore find that Mr. Nichols actions were consistent with the Open Records Law.
Mr. Hawes may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.