Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Bardstown City Schools did not violate Open Records Act where it did not have the subcontractor bids requested, which were not public records and were in sole possession of a private general contractor. Decision adopts 08-ORD-206.
Open Records Decision
The issue presented in this appeal is whether Bardstown City Schools ("BCS") violated the Open Records Act in its disposition of Scott Beck's May 13, 2019, request for "copies of any and all materials concerning BG1 AND BG2 energy Conservation Project," including "all bid documentation for all HVAC systems and LED lighting upgrades along with the approval and selection process of successful bidders." For the reasons that follow, we find no violation of the Act.
On May 16, 2019, BCS provided Mr. Beck all the responsive records in its possession. Those records did not include the original subcontractor bid documents, but only a table of compiled information titled "Contractor Bid Tracking & Selection." On July 15, 2019, Mr. Beck sent a follow-up letter regarding the subcontractor bid documents. 1BCS replied on July 23, 2019: "Bardstown Independent [ sic ] Schools did not solicit any bids relating to this project. Any bids received would have been solicited and received by our selected general contractor CMTA Energy Solutions."
Mr. Beck initiated this appeal on September 4, 2019, contending that BCS was supposed to have been "directly involved in the bid review process with CMTA" and the selection of the subcontractors. On September 19, 2019, BCS responded to the appeal, stating that it had "repeatedly directed" Mr. Beck to CMTA as the proper custodian of the subcontract bid records, as "CMTA was solely responsible for soliciting and reviewing bids and acting as the Qualified Provider" on the project in question. 2BCS indicated that CMTA had already solicited and reviewed the bids from the subcontractors prior to making its prime contract with BCS. Under the contract, as quoted by BCS, CMTA "shall be solely responsible for and have control over all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Design-Build Documents."
The parties clearly disagree as to whether BCS was involved in the review of bids and selection of subcontractors by CMTA. "[W]e are not equipped to resolve a factual dispute in the context of an open records appeal." 01-ORD-51 n.1. In this case, without evidence that BCS was involved in the process, we can only rely on the contractual terms and BCS' representation that CMTA was solely responsible for the subcontractor bidding process and has sole possession of those bid records.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Although public records remain public when a private entity holds them "at the instance of and as custodian on [an agency's] behalf," 04-ORD-123, such is not the case here. BCS represents that it was not involved in the selection of subcontractors for the project and has not prepared, owned, used, or possessed the bid records, which are CMTA's alone. The Act does not "impose an obligation on agencies to create, procure, or retrieve a record" of a private contractor which is not within the agency's possession, custody, or control. 99-ORD-202; see also 06-ORD-201.
Mr. Beck does not dispute that the general contractor, CMTA Energy Solutions, is a private entity as opposed to a public agency.
[When] the "custodian" of the records in dispute is a private [contractor that] cannot be properly characterized as a "public agency" within the meaning of KRS 61.870(1), it necessarily follows that such records are not "public records" within the meaning of KRS 61.870(2), as they are not "prepared, owned, used, in the possession of or retained by a public agency." ... Nor are they held "at the instance of and on behalf of" [a public agency].
08-ORD-206 (note omitted). As 08-ORD-206 applies specifically to subcontractor bid records in the sole possession of a general contractor, we attach a copy of that decision and adopt its reasoning as the basis of this decision. Accordingly, we find no violation of the Open Records Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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