Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Fair Board violated the Kentucky Open Records Act in denying Fox 41 News Reporter Dick Irby's request for the "proposals received by the February 15th RFP deadline for showing interest in a new fairgrounds hotel." Because the Board is currently involved in the process of competitive negotiation under KRS 45A.085, the Board is entitled to withhold the requested proposals until such time as it has either rejected all of the proposals or accepted a proposal and awarded a contract. Disclosure of any information "derived from the proposals submitted by competing offerors" is prohibited by KRS 45A.085(7), incorporated into the Open Records Act by operation of KRS 61.878(1)(l); likewise, 200 KAR 5:307, Section 4, the corresponding regulation, provides that proposals for competitive negotiations shall not be open for public inspection until negotiations with "all offerors have been concluded and a contract awarded[.]" Although the Board did not cite this confidentiality provision in attempting to satisfy its burden of proof under KRS 61.880(2)(c), the Attorney General finds, in accordance with KRS 45A.085(7), 200 KAR 5:307, Section 4 and governing precedents, that the Board properly denied Mr. Irby's request inasmuch as the competitive negotiation process relative to Solicitation Number FH012072007 has not been concluded. Notwithstanding any deficiencies, "the substance of the material sought to be discovered" determines the result of this appeal.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 859 (1996).
On February 25, 2008, Mr. Irby submitted his request via e-mail; 1 he apparently did not receive the Board's written response directed to him via facsimile on March 3, 2008, hence this appeal challenging the Board's alleged refusal to respond upon receipt of his request. Although Mr. Irby makes various allegations on appeal regarding subsequent conversations and correspondence with Information Specialist Amanda Storment and Board Director Harold Workman, the summation of which Board Counsel Ellen F. Benzing emphatically disputes in responding to his appeal, 2 Mr. Irby acknowledges by letter dated May 15, 2008, 3 that he mistakenly indicated April 14, 2008, was the date of his initial request, rather than February 25, 2008, the actual date as Ms. Benzing correctly notes. In relevant part, Mr. Irby then asks the Attorney General "to please confirm that the Fair Board is correctly citing KRS 61.878(1)(i) as justification to delay its disclosure of RFP responses[.]" Because this office is unable to conclusively resolve factual disputes, 4 both parties have acknowledged certain procedural irregularities, and the record is now clear as to the content of the original request and response, it suffices to say that the parties have differing recollections of the events which culminated in this appeal; our analysis focuses on the substantive question of whether the Board properly denied access to the requested proposals.
In denying Mr. Irby's request, Ms. Benzing originally asserted the following:
KRS 61.878(1)(i) exempts documents from disclosure that are preliminary and not intended to give notice of final action of a public agency. Responses to a Request for Proposal ("RFP") are preliminary until such time as: (1) the contract is awarded; or (2) the bid is officially cancelled. Neither of these events has occurred regarding Solicitation Number FH012072007, the RFP you reference in your open records request.
On appeal, the Board did not elaborate upon this position.
Unable to satisfactorily resolve this issue based upon the limited evidence of record, the undersigned counsel requested additional information from the Board in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. More specifically, this office asked Ms. Benzing to "please specify which of the methods outlined at KRS 45A.075 the Board employed in requesting the proposals at issue," to elaborate upon the assertion that responses to a RFP are "preliminary within the meaning of KRS 61.878(1)(i), citing any relevant authority which supports your position," and to "advise regarding the current status of the matter." According to Ms. Benzing, the Board "maintains that whereas no contract has been awarded pursuant to the Request for Proposal, known as Solicitation Number FH012072007, competitive negotiation was initiated[.]" In support of its position relative to application of KRS 61.878(1)(i) , the Board implicitly relied upon 05-ORD-001, "related to the Louisville Regional Airport Authority's . . . denial of proposals related to the Wyndham Hotel at the Louisville International Airport." 5 Because the Board "has not discontinued efforts to enter a contract, rejected proposals or awarded a contract[,]" Ms. Benzing argues that Mr. Irby's request was properly denied, emphasizing that disclosure of information related to the specified RFP could "potentially provide an unfair competitive advantage to other potential proposers." Regarding the status of the matter, Ms. Benzing advises that it "remains the same as it did" when the Board responded to Mr. Irby's request on March 3, 2008.
Although the Board relies exclusively upon 05-ORD-001 in support of its argument relative to KRS 61.878(1)(i), that decision is mostly inapposite on the facts presented. In that decision, the Attorney General declined to retreat from the position articulated in OAG 98-11, "that sealed competitive bids [a different process governed by KRS 45A.080] are subject to public inspection when opened regardless of whether the vendor is accepted or all the bids rejected." Id., p. 8 (emphasis added). In rejecting the Authority's argument relative to KRS 61.878(1)(i) and (j), 6 the Attorney General merely acknowledged that sections or portions of the "opened bids" could be withheld from disclosure if the Authority met its burden of establishing that one of the exceptions codified at KRS 61.878(1) applied, citing KRS 61.878(1)(c)1. for an example. Id. Of relevance in resolving the sole question presented here, this office recognized that should the Authority "pursue a competitive negotiation process, records generated during the negotiation process or while the negotiations are ongoing may be withheld from disclosure until the contract is awarded or negotiations cancelled. See OAG 87-21." Id. Simply put, 05-ORD-001 does not otherwise stand for the proposition for which it was cited. Despite these "undeniable deficiencies" in the Board's original and supplemental responses, the Attorney General must affirm the Board's denial of Mr. Irby's request, albeit on a different basis, in the interest of reaching the correct legal result as "the remedy of disclosure" has been expressly disapproved. 7 Edmondson at 859. See 08-ORD-128; 08-ORD-021.
Our duty in resolving the question presented "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In so doing, this office is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, the Attorney General must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). Absent a statutory definition, this office "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra. When viewed in light of these governing principles, the mandatory and express language of KRS 45A.085(7) and the corresponding regulation, 200 KAR 5:307, Section 4 removes any doubt as to whether the General Assembly intended to afford protection to the requested proposals when the competitive negotiation process is ongoing.
Pursuant to KRS 45A.075, "all state contracts shall be awarded by" one of the four procedures identified therein "[e]xcept as otherwise authorized by law." Our analysis begins with subsection (2), which refers to "Competitive negotiation, pursuant to KRS 45A.085 and 45A.090 or 45A.180[.]" As previously indicated, KRS 45A.085 governs the process being utilized relative to Solicitation Number FH012072007. Resolution of the instant appeal turns on KRS 45A.085(7) which, in relevant part, contains the following mandate:
Written or oral discussions shall be conducted with all responsible offerors who submit proposals determined in writing to be reasonably susceptible of being selected for award. Discussions shall not disclose any information derived from proposals submitted by competing offerors.
(Emphasis added.) This confidentiality provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which excludes from application of the Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Similarly, 200 KAR 5:307, Section 4 provides:
Proposals shall not be subject to public inspection until negotiations between the purchasing agency and all offerors have been concluded and a contract awarded to the responsible offeror submitting the proposal determined by the purchasing officer in writing to be the most advantageous to the Commonwealth, based upon the price and the evaluation factors set forth in the solicitation.
(Emphasis added.) When viewed in conjunction, KRS 45A.085(7) and 200 KAR 5:307, Section 4 conclusively resolve the sole question presented.
In our view, the analysis contained in OAG 85-68 is equally applicable in this case; a copy of that decision is attached hereto and incorporated by reference. As in that decision, "[w]e construe the situation involved here as part of a continuing or ongoing process of competitive negotiations between the [Board (a state agency)] and offerors. " Id., p. 3. Because KRS 45A.085(7) (then codified as subsection (6)) prohibits, "during the competitive negotiation process, the release by the public agency of information derived from proposals submitted by offerors [,]" the Board is authorized to withhold the requested proposals. Id. However, the Board is required to make available for public inspection "those records associated with the competitive negotiation process, which are not otherwise precluded from inspection, at the final conclusion of the process (the final rejection of all proposals or the acceptance of a proposal and the awarding of a contract)." Id.
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.
Footnotes
Footnotes
1 In accordance with KRS 61.872(2), any person "shall have the right to inspect public records." However, the "official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency. " (Emphasis added.) Accordingly, a public agency is not required to accept electronic requests, but may "consent, by a clear course of conduct, to transact [its] open records business by email." 98-ORD-167, p. 5.
2 Attached to Ms. Benzing's response is a copy of the Board's response dated March 3, 2008, along with a hard copy of Mr. Irby's e-mail dated February 25, 2008, but apparently viewed by Ms. Storment at 4:59 p.m. on February 26, 2008, and the subsequent e-mails by which Ms. Storment forwarded the request to Mr. Workman, and Mr. Workman forwarded it to Ms. Benzing, dated February 27, 2008, and March 3, 2008, respectively.
3 Attached to Mr. Irby's reply is a hard copy of the original e-mail correspondence referenced in his letter of appeal, the notations on which Ms. Benzing challenged in her response on behalf of the Board; apparently, Mr. Irby initially "added the notes to Ms. Storment and Mr. Workman that appeared on subsequent letters" but later "retrieved the actual letters" to enclose with his reply.
4 As consistently recognized by this office, the role of the Attorney General in adjudicating a dispute under the Open Records Act is narrowly defined at KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate.
5 Although 05-ORD-001validates the Board's position for a different reason, the section quoted by the Board is the "Conclusion" of the agency's response, as opposed to our holding that the analysis in OAG 98-11 relative to KRS Chapter 45A (the Kentucky Model Procurement Code), is equally applicable as to procurements under KRS 424.260, the statute under which the Authority was conducting its process. Id., p. 7.
6 Although the proposals may be preliminary within the meaning of KRS 61.878(1)(i) until such time as the competitive negotiation process is concluded with a contract being awarded, the Board has not established that such proposals are properly characterized as "drafts, notes, [or] correspondence with private individuals"; in any event, further consideration of this argument is unnecessary given our determination that a more specific provision is directly on point.
7 More specifically, the Court found that a public agency's initial "error cannot be remedied by committing another [namely, requiring disclosure of statutorily protected records] and thus compounding mistakes at the possible expense of due process." Id.