Request By:
Mr. Mark Marraccini
Finance and Administration Cabinet
301 Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowen, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for the Lexington Herald-Leader, Mr. Thomas W. Miller has appealed to the Attorney General pursuant to KRS 61.880 your denial of Mr. Kit Wagar's request to inspect certain records in the possession of the Finance and Administration Cabinet. On April 17, 1991, Mr. Wagar, a staff writer for the Herald-Leader, submitted a request to the Cabinet for access to:
[A]ll correspondence between the Cabinet or any representative of the Cabinet and Pulliam Investment Company or any representative from March 20, 1991 to the present.
This request includes any letter sent to Secretary Wells the week of March 25-29 whether sent by fax, mail, courier or other means of delivery.
You denied Mr. Wagar's request in a letter dated April 22, 1991, relying on KRS 61.878(1)(g). In support of your position, you stated:
Under KRS 61.878(1)(g), any correspondence between officials of the Finance and Administration Cabinet and representatives of Pulliam Investment Company, Inc., since March 20, 1991, is excluded from public inspection, because this correspondence is 'with private individuals' which does not give notice of any final action by the Finance and Administration Cabinet.
You did, however, indicate that all correspondence which was intended to give notice of final agency action was available for inspection in the file maintained by the Division of Real Properties, and could be inspected during normal business hours.
In his letter of appeal to this Office, Mr. Miller argues that KRS 61.878(1)(g) does not authorize nondisclosure of documents associated with the competitive bidding process once a vendor is selected. Citing OAG 89-31 and OAG 84-284, he asserts:
[A]ny correspondence between the Finance and Administration and Pulliam related to the competitive bid process become part of the Cabinet's records that must be produced now that the bid process is complete.
Additionally, he urges that under the reasoning of OAG 90-7, Pulliam was no longer a "private individual" for purposes of the Open Records Act once the contract was awarded to it, and its correspondence with the Cabinet was therefore public record.
Mr. Miller has asked that this Office review the Cabinet's denial of Mr. Wagar's request to determine if this action was consistent with the Open Records Act. For the reasons set forth below, we conclude that denial was improper under the Act.
OPINION OF THE ATTORNEY GENERAL
Fundamental to the Open Records Act is the principle that "access to information concerning the conduct of the peoples' business is a . . . necessary right of every citizen in the Commonwealth of Kentucky." In reviewing appeals under the Act, the courts are obliged:
[T]o take into consideration the basic policy of KRS 61.870 to 61.884 that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
KRS 61.884(2). Although certain classes of documents are exempt under the Act, these exemptions are to be invoked sparingly in view of this policy.
It is your position that KRS 61.878(1)(g) exempts from mandatory disclosure all correspondence between the Cabinet and Pulliam since March 20, 1991. That provision authorizes nondisclosure of:
Preliminary drafts, notes correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.
In relying on KRS 61.878(1)(g) you have significantly broadened the scope of that exemption to include all documentary material pertaining to the bidding process.
This position is inconsistent with the basic policies of the Act, and a number of earlier opinions of this Office. As we noted in OAG 89-31, at page 3:
With regard to bids, quotations, or proposals, . . . these documents were submitted by or in the name of business firms, not private individuals, in soliciting state business. Accordingly, the bids, quotations or proposals cannot be considered as 'correspondence with private individuals,' within the meaning of KRS 61.878(1)(g). Inspection of these records, when requested after selection of a vendor, must be permitted.
This reasoning is consistent with an earlier opinion of this Office in which we stated:
As documentary material retained by a public agency, the bid invitation, correspondence pertaining to the bids , and the bids themselves are public records subject to the Open Records law. KRS 61.870. Unless exempted by the provisions of KRS 61.878, these records are open to public inspection.
OAG 84-284, at page 2. [Emphasis added.] Only those records generated in the competitive negotiation process, while it is ongoing, are exempt. OAG 84-284; OAG 85-68; OAG 87-21. Once those negotiations are concluded, either by the award of a contract to one bidder or the rejection of all bids, the public agency must make the records available for public inspection. OAG 85-68; OAG 80-327.
With respect to correspondence between the Cabinet and Pulliam since the contract was awarded, we are persuaded that OAG 90-7 is dispositive. There we observed:
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. Such a contractor, in our view, loses any character of a 'private individual,' as such phrase is used in KRS 61.878(1)(g), that the contractor might be said to have, in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract.
OAG 90-7, at page 4. [Citation omitted.] Clearly, the correspondence at issue in this appeal cannot be considered correspondence with a private individual insofar as it was exchanged by a public agency and a corporation under public contract, and involved issues pertaining to that contract. OAG 83-79; OAG 89-96; OAG 91-21.
We therefore conclude that the Cabinet improperly denied Mr. Wagar's request. Unless the disputed records are exempt under some other provision of the Open Records Act, they must be made available for public inspection. All correspondence exchanged prior to the award of the contract which relates to bids, quotations or proposals is now public record, under the reasoning announced in OAG 89-31. All correspondence exchanged after the award of the contract, is also public record under the reasoning announced in OAG 90-7.
As required by statute, a copy of this opinion will be sent to Mr. Thomas W. Miller. The Cabinet may challenge it by instituting proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court. KRS 61.880(5).