Request By:
E. L. Gold
Kentucky New Era
1618 E. 9th Street
Hopkinsville, KY 42241-0729Sandra M. Rogers
Office of the President
Murray State University
P.O. Box 9
Murray, KY 42071-0009John P. Rall
General Counsel
100 Pogue Library
Murray State University
Murray, KY 42071-3308
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the responses of Murray State University to two open records requests by E. L. Gold, Kentucky New Era, violated the Open Records Act. We conclude that the responses were consistent in part and inconsistent in part with the Act.
In the first request, Mr. Gold requested to inspect:
All documents relating to construction practices or deficiencies that caused delays at the Regional Postsecondary Education Center in Hopkinsville, including but not limited to reports and correspondence detailing the cause and cost of the delays and the remedies approved to resume or continue construction.
Responding to Mr. Gold's request, Sandra Rogers, Records Custodian for the University, advised:
Your request for "all documents relating to" is of the type which has been described as "open-ended" and an "any-and-all-records-that-relate-type of request." 96-ORD-101. It is couched in the broadest possible terms and fails to identify with particularity the specific records requested. KRS 61.872(2); 97-ORD-161. Accordingly, it is not possible to indicate with certainty whether a specific document, in which you may be interested, exists or is even in our possession.
Further, although it is not possible to discern the specific documents you seek, your request could very well implicate, e.g., KRS 61.878(1)(j) which protects from disclosure "preliminary recommendations, and preliminary memorandum in which opinions are expressed or policies formulated or recommended. "
Accordingly, we are unable to respond to your request.
Subsequent to the University's response, Mr. Gold submitted a second request, asking to inspect the following records:
1. Documents or electronic records detailing the cause and cost of construction delays at the Regional Postsecondary Education Center in Hopkinsville, including the document(s) halting any or all construction.
2. Documents or electronic records detailing the nature of, cost of and responsibility for remedies approved to resume or continue construction, including the document(s) authorizing construction to resume or continue.
Responding to Mr. Gold's second request, Ms. Rogers advised:
There are documents which address current construction issues at West Regional Postsecondary Education Center in Hopkinsville. These consist of reports and correspondence generated by the University, consultants, and contractors.
However, there is no absolute right to review public records. As noted in our original response, KRS 61.878(1)(j) protects from disclosure "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " The documents referenced above are preliminary to any final resolution of the construction issues and completion of the project. As with preliminary construction documents in general, they present for review and consideration opinions as to the acceptability of work performed and opinions and recommendations as to the need for and nature of changes. More fundamentally, until final completion of the project portions of and plans for construction simply are subject to change. Thus, pursuant to the cited statute, your request must be denied.
In his letter of appeal, Mr. Gold challenges the University's response that his first request was too broad and its response to his second request that the requested documents he sought were preliminary documents, under KRS 61.878(1)(j), and remained so until completion of the project. He argues the records he seeks "involve at least two final actions by the university: the decision to stop construction at the West Regional Postsecondary Education Center and the decision to resume it.
After receipt of Notification of the appeal and a copy of Mr. Gold's letter of appeal, John P. Rall, General Counsel, provided this office with a response on behalf of the University to the issues raised in the appeal. In his response, Mr. Rall stated, in part:
Initially, as is evident, the University has never said it will never produce appropriate documents concerning the construction project. In reality, this appeal entails an issue of timing. Mr. Gold wants access to records now, while the agency charged with constructing the project attempts to resolve construction issues.
As the Attorney General is well aware, capital construction is an enormously intricate undertaking, and it is naive to believe that construction issues will not arise during such a project. Here, as may commonly occur, the owner and its consultant felt there may be potential construction issues; investigation occurred and opinions were formed; the contractor was given the opportunity to conduct its investigation and present its opinions; a resolution between the parties will eventually be memorialized in a change order to the contract for construction. The project will continue towards completion. Except for the change order, which does not yet exist, this reflects the nature of the documents here, and this process is no different from administrative investigations which are recognized as preliminary until a final decision is rendered. See, e.g., Kentucky State Board of Medical Licensure v. Courier-Journal, 663 S.W.2d 953 (KY App. 1983); City of Louisville v. Courier-Journal, 637 S.W.2d 658 (KY App. 1982). Documents incorporated into the final decision are no longer preliminary at the point of final conclusion.
Under no circumstances has any final resolution been reached with the issues in which Mr. Gold is interested. In the most obvious sense, the project simply is not complete and before completion, the project is subject to change. The changing nature of a capital project is reflected in statute; KRS 45A.200(1) requires that construction contracts in excess of $ 50,000 contain clauses allowing changes to contract terms and conditions in the event of a unilaterally ordered change by the Commonwealth. Further, the project is not final until "final completion, " which is discussed at Section 28.4 of the "General Conditions of the Contract for Construction," a copy of which is attached as Exhibit C. See also Moduform, Inc. v. Verkler Contractor, 681 NE2d 243 (Ind. App. 1997) which states that "'final completion and acceptance' requires the project to be at its end. That is, all of the work under the original contract on the project must be finished before 'final completion acceptance' can occur." 681 NE2d at 248. (emphasis added.)
Further, the process here cannot be finalized, at the least , until a change order is executed to the construction. See 200 KAR 5:311, "Contract Modifications," where, at Section 2, it is stated "All changes or modifications to contracts for ? construction services shall be effected by an advise of change in order to the contract . . ." Until a change order is executed by the parties, there is no definitive "agreed to" resolution. There has been no change order because portions are still preliminary . By correspondence received from the project consultant, subsequent to the response to Mr. Gold's second request, the University was advised of the still preliminary nature of a portion of what should eventually be incorporated into a change order.
Contrary to Mr. Gold's contention, stopping some portion of work is not final action of anything. If it is final action, the project will never be completed. In reality, it is simply an interim measure to preserve the status quo while issues are resolved one way or another. Similarly, re-instituting some portion of the work, aside from showing that stopping work was not final, emphasizes the preliminary nature of what is transpiring. The only final action occurs when the project is finally inspected, finally accepted, and finally completed. Clearly, the purpose of KRS 61.878(1)(j), "? to protect the integrity of the agency's decision making process by encouraging the free exchange of opinions and ideas, and to promote informed frank discussions of matters of concern to the agency," 00-ORD-168, will be thwarted if documents reflecting opinions, etc., unincorporated in the project as finally completed or in a properly executed change order, are subject to public disclosure.
We are asked to determine whether the responses of the University violated the Open Records Act. For the reasons that follow, we conclude that the responses were consistent in part and inconsistent in part with the Act.
Addressing the University's response to Mr. Gold's first request, the records to which Mr. Gold requested access were not identified with "reasonable particularity, " nor were they of an identified, limited class. Rather, his was an "open-ended-any-and-all records-that-relate-type of request" that was criticized in 96-ORD-101 and 99-ORD-14. In the latter decision, this office recognized that:
A request for any and all records that contain a name, a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
99-ORD-14, p. 6. Further, we recognized that:
although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, public employees "are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time." OAG 76-375, p. 4.
99-ORD-14, p. 5. Here, as in 99-ORD-14, the requested records were not identified with "reasonable particularity, " nor were they of an identified, limited class. As framed, we conclude Mr. Gold's first request was overly broad and the agency's response in this regard was proper.
Although Mr. Gold's second request was somewhat narrower in scope than the first, the University nevertheless responded by indicating the existence of records which addressed concurrent construction issues at the Center and described those records as "reports and correspondence generated by the University, consultants, and contractors. " Citing KRS 61.878(1)(j), the University explained the documents were preliminary to any final resolution of the construction issues and denied the request for those documents.
In its response to the letter of appeal, the University expanded its response by explaining that "the owner and its consultant felt there may be potential construction issues; investigation occurred and opinions were formed; the contractor was given the opportunity to conduct its investigation and present its opinions; a resolution between the parties will eventually be memorialized in a change order to the contract for construction." The University further advised in its response that no change order had yet been executed by the parties because portions of the proposed change order were still preliminary.
Under these facts, we conclude that the University properly denied the request for preliminary records relating to the construction delays, its administrative investigation, and change order to the contract for construction.
In 99-ORD-13, this office held that the Transportation Cabinet did not violate the Open Records Act in partially denying a request for various records relating to defective concrete used by a contractor in a reconstruction project of a portion of Interstate 75 in Kenton County Kentucky. In that decision, we stated at pgs. 3-5:
We find that the Transportation Cabinet properly relied on KRS 61.878(1)(j) in partially denying [the requester's] request. The disputed documents in this appeal consist of a proposal submitted by the Cabinet to [the contractor] relating to the problems with the concrete pavement on I-75, and [the contractor's] counterproposal. Our review of these documents does not confirm the existence of a "plan" submitted by the company. The proposal and counterproposal are still on the negotiating table, and no final resolution of the dispute has been reached.
OAG 79-347, p. 3; OAG 79-326 (holding that proposals and counterproposals submitted in negotiating process may be withheld pursuant to KRS 61.878(1)(i) and (j)); OAG 87-21 (holding that records involved with an ongoing competitive negotiation process are preliminary pending final resolution of the matter); OAG 91-21 (holding that letter of intent issued by city and county relative to incentive package is subject to negotiation until such time as final agreement is reached among the parties and may be withheld pursuant to KRS 61.878(1)(i) and (j)); 97-ORD-62 (holding that records generated in the course of negotiations and disclosing the substance of those negotiations may be withheld pursuant to KRS 61.878(1)(i) and (j) since "premature disclosure of records reflecting the negotiations . . . could seriously compromise the project [and] nondisclosure of those records prior to the finalization of the agreement promotes the purposes for which KRS 61.878(1)(i) [and] (j) . . . were enacted . . ."). On the basis of these authorities, we find no error in the Transportation Cabinet's denial of [the requester's] request for [the contractor's] counterproposal.
Accordingly we conclude that the University properly denied access to records preliminary to any final agency action, either as to final action on its administrative investigation of issues relating to the construction project or to a final change order to the construction contract. KRS 61.878(1)(j); 99-ORD-13. This would include records addressing concurrent construction issues at the Center and reports and correspondence generated by the University, consultants, and contractors over potential construction issues; investigations and opinions formed; the contractor's investigation and opinions. However, any records that are adopted into or form the bases of any final agency action and the agency's final action should be made available for Mr. Gold's inspection.
Finally, we do not agree with the University's position that all records pertaining to the contract are preliminary until final completion and acceptance of the construction contract. As noted above, any records that are adopted into or form the bases of any final agency action or constitute final agency action, such as the original contract signed by the parties and any subsequent change orders, paid invoices, awarded subcontractor contracts, etc., would not be preliminary documents, exempt under KRS 61.878(1)(j), and should be made available for inspection. This would allow the public to know the terms and nature of the construction contract.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.