Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Ashland violated the Open Records Act in the disposition of Chris Oney's request to inspect and copy "minutes of meetings and payments made to Codell Construction for cost evaluation of the Ashland Police Station Project, [and] any findings and documents Codell submitted . . . to the city." For the reasons that follow, we affirm the City's denial of Mr. Oney's request based on our understanding that no new bids for the construction of a police building have been prepared or advertised.
In response to Mr. Oney's request, Acting City Manager Tony Grubb advised that "there are no minutes of any meetings, nor any payments made to Codell Construction," but provided him with "bid specifications and bids received on the police project." Continuing, Mr. Grubb observed:
The City has advertised for bids for a project manager for the police station project. Proposals have been received from several interested parties. Codell offered without charge to review the existing specifications relating to the police station project prepared by the City's architect regarding areas of potential savings. Under the provisions of KRS 61.878(1)(c)1., the City believes that other parties who are interested in making a proposal for project manager or potential re-bidders on the project might gain an unfair commercial advantage from the disclosure of this information. It is also believed that this information is exempted from inspection under KRS 61.878(1)(j) in that the information consists of preliminary recommendations in which opinions are expressed and policy is recommended. Therefore, the City respectfully declines to provide the information requested.
Shortly thereafter, Mr. Oney initiated this appeal arguing that because "the project has already been rebid, . . . there would be no unfair commercial advantage to let me view the documents," and that his only interest in the document(s) withheld is to insure that "the taxpayers' money is being spent in a fair and orderly manner."
In supplemental correspondence directed to this office following commencement of Mr. Oney's appeal, Ashland Corporate Counsel Richard W. Martin elaborated on the City's position. He explained that all bids received in response to the City's June 1 and 12 advertisement for proposals for the construction of a police building substantially exceeded the cost estimate projected by the City Architect and were rejected, prompting the City to advertise for proposals for professional services from "other potential project managers" in August 2008. In the interim, Codell Construction Company contacted the City Manager "regarding the possible engagement of Codell to provide construction management services," and offered "to review [without cost to the City] the bid specifications and drawings of the project" for the purpose of making "tentative recommendations to the City Manager regarding possible revisions in the plans to lower the projected cost." On August 11th, Codell submitted its "evaluation" by email. However, "[t]o date," Mr. Martin asserted, "the Codell evaluation had not been fully reviewed and considered by the City or its Architect, " and new construction bids have not been prepared or advertised.
It was the City's continuing position that release of the information contained in the Codell evaluation "could result in potential re-bidders on the construction project gaining an unfair commercial advantage from the disclosure of the information and . . . that the information consists of preliminary recommendations in which opinions are expressed and policy is recommended. " In support, the City provided this office with a copy of the Codell evaluation for in camera inspection. Having reviewed that record, we affirm the City's reliance on KRS 61.878(1)(j) as the basis for denying Mr. Oney's request. Resolution of this issue turns on the application of the holding in
Baker v. Jones, 193 S.W.3d 749 (Ky. App. 2006) (enclosed).
In KRS 61.878(1)(j) authorizes nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]
In 06-ORD-021, this office affirmed the City of Bowling Green's denial of a request for interagency email on the basis of KRS 61.878(1)(i) and (j) as construed in Baker v. Jones, above. Having reviewed the electronic records in dispute, we approved the City's characterization of those records as, inter alia, "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, " and, at page 4 of that decision, concluded that the "electronic records enjoy the same protection as hard copy records containing the same communications under a line of decisions dating back to 2000 1 and a recent decision of the Kentucky Court of Appeals." We quoted from Baker v. Jones, above, at 752, in which the court recognized that "emails that were exchanged between the mayor and the city council members were preliminary discussions involving what course of action should be taken in regard to a controversy . . . [and therefore] preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . [which] were not subject to disclosure. " We analogized the disputed records to the email at issue in 05-ORD-221, affirming agency denial of access to emails containing recommendations and opinions, and concluding that the emails fell squarely within the parameters of KRS 61.878(1)(i) and (j). Copies of 06-ORD-021 and 05-ORD-221 are attached hereto and incorporated by reference.
Only one document remains in dispute in this appeal, the City having released the bid specifications and bids received on the police building construction project to Mr. Oney and denied the existence of "minutes of any meetings [or] any payments made to Codell Construction." 2 Our review of the disputed document, Codell's August 11 "evaluation" of the bid specification and drawings and recommendations regarding possible revisions of same, confirms the City's position that it consists, entirely, of opinion and recommendation aimed at lowering the projected construction costs. Mr. Oney is in error in his view that the police station construction project "has already been re-bid . . . ." Instead, the City has requested proposals for professional services from potential project managers. Mr. Martin attests that "no new [construction] bids have been prepared or advertised; " nor has the Codell "evaluation" been "fully reviewed and considered," much less adopted in part or in whole as the basis of final action relative to revising the bid specifications. Accord,
City of Louisville v. Courier-Journal, 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal, 663 S.W.2d 953 (Ky. App. 1983) ;
University of Kentucky v. Courier-Journal, 830 S.W.2d 373 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d, 591 (Ky. App. 2001); Baker v. Jones, above. Accordingly, we find that the City properly withheld the evaluation under authority of KRS 61.878(1)(j). Because the evaluation qualifies for exclusion under KRS 61.878(1)(j), we do not address the propriety of the City's invocation of KRS 61.878(1)(c)1. as additional grounds for nondisclosure.
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 Citing 00-ORD-132.
2 Under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), in order to disprove the City's denial of the existence of minutes of meetings with Codell and records of payments to Codell, Mr. Oney must make a prima facie showing that such records in fact exist. See 07-ORD-188, attached hereto and incorporated by reference. Mr. Oney makes no such showing.