Request By:
Frank X. Quickert, Jr., Esq.
Director of Law
City of Louisville
Department of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Patricia A. Abell, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect and copy certain records which are or were in the custody of the city.
In a letter to Ms. Angela Murray, Ms. Abell requested that she be permitted to inspect all bids received by the city of Louisville pursuant to City Ordinance # 389, Series 1986.
You replied to Ms. Abell, in a letter dated December 29, 1986, in part as follows:
"Because the only 'bid' was tendered after the deadline contained in the newspaper advertisement, the Department of Law has determined that the bid was not 'publicly received' as per the terms and conditions of Ordinance No. 389, Series 1986. The bid is being returned without being acted on.
"Because the Department of Law does not consider the document to be a 'publicly received' bid, but rather correspondence with private individuals not intended to give notice of final action, we are denying your request. KRS 61.878."
In her letter of appeal to this office, Ms. Abell states in part that the bid in question was received pursuant to a city ordinance and even if it was tendered after the deadline, the city acted on it as if it were timely received. The city opened, read and forwarded the bid to various city officials and departments. Ms. Abell maintains that the bid in question was not received as correspondence with a private individual.
The only other document concerning this matter which this office has seen is a copy of Ms. Abell's letter to you, dated January 5, 1987. In that letter she states in part as follows:
"It does not appear to me that an anticipated submission of the bid to the Board of Alderman for approval (with or without negotiated changes) qualifies the bid for an exemption as correspondence with private individuals. Furthermore, the bid should not have been accepted after the deadline and should have been returned immediately to the bidder without being opened and read."
The undersigned Assistant Attorney General was unable to reach you by telephone and, in your absence, I talked with Paul V. Guagliardo, Esq., of your staff on January 14, 1987. He advised that the bid in question was not timely received. Although the bid was opened and has been seen by several persons within city government, it was never considered on its merits because of its untimely receipt. Since no timely bids were received the city intends to seek new bids relative to the matter in the near future.
OPINION OF THE ATTORNEY GENERAL
This office has stated in prior opinions (See, for example, OAG 84-284, copy enclosed) that documents which identify the bid or bidder individually and with specificity would not be open to public inspection until the bids were publicly opened. Those opinions, however, were based upon the assumption that the bids had been timely received and that the public agency would select one of the bids or reject all the bids.
In the situation with which this opinion is concerned only one bid was received by the public agency and that bid was not filed within the time frame prescribed by the city ordinance. This was not a case of the public agency selecting the best bid or rejecting all bids. No bid was considered on its merits by the city as the only bid which had been tendered was not timely presented. The city now intends to seek new bids relative to the project in question. The city should have determined when the bid was tendered whether it was timely and, if not, the untimely bid could have then been rejected and returned. However, merely opening the untimely bid, when the city never considered the bid on its merits, does not make the document a public document and a part of the bidding process which must be made available for public inspection and copying.
Among the public documents which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(g):
"Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; "
If the city retained for some portion of time the untimely bid which it never considered on its merits, that document is not part of the bidding process. It was not accepted or rejected as a valid and timely bid. It could properly be considered as a kind of correspondence with a private party which could be excluded from public inspection.
It is therefore the opinion of the Attorney General that the city's denial of a request to inspect and copy documents submitted as a bid was proper as the bid was not timely filed and was never considered on its merits by the city. Such documents may be considered as correspondence with private individuals and may be excluded from public inspection pursuant to KRS 61.878(1)(g).
As required by statute a copy of this opinion is being sent to the requesting party, Ms. Abell, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).