Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Arena Authority, Inc. violated the Kentucky Open Records Act in the disposition of Courier Journal reporter Marcus Green's and W. W. Chilton III's 1 June 17, 2008, requests for various records in the possession of M.A. Mortenson Company, the Construction Manager-at-Risk for the Louisville Arena project, including all requests for proposals from subcontractors and responses thereto, documents associated therewith, and records concerning Mortenson's budget for each bid package. Insofar as LAA's ultimate disposition of each request is nearly identical, the resulting appeals present identical questions of law; accordingly, these appeals have been consolidated for purposes of adjudication under KRS 61.880(2). Given the fact that the Finance and Administration Cabinet has determined, in the context of a bid protest, that Mortenson was not acting as an agent of the LAA, but as a contractor-at-risk within the meaning of KRS 45A.030(6), this office, having carefully reviewed the record in appeal, must affirm LAA's disposition of the requests in accordance with governing precedents, notwithstanding the potential implications and significant policy considerations weighing in favor of disclosure.
In timely (but otherwise deficient) and identical responses dated June 20, 2008, Records Custodian and General Counsel Mark F. Sommer advised both Mr. Green and Mr. Chilton that the requested documents were not being provided for the following reasons:
To date, we have not located the requested documents, and thus, have determined that such documents, if they exist, are not in our possession or control. See . . . 06-ORD-201 (Oct. 6, 2006). We are, however, still investigating. We anticipate that the earliest date that we will be able to complete our additional review is July 7, 2008.
In closing, Mr. Sommer suggested reviewing "the many documents that are always available for public viewing on [LAA's] website at www.arenaauthority.com."
Shortly thereafter, Mr. Chilton requested in writing that Mr. Sommer reconsider his response in light of the mandate found at KRS 61.871, the holding of 06-ORD-086 (holding that LAA is a public agency for purposes of the Open Records Act) , and the procedural requirements of KRS 61.880(1) and KRS 61.872(5). 2 On July 7, 2008, Mr. Sommer reiterated to Mr. Chilton that LAA's initial search "located no responsive documents. Nonetheless, as we indicated we would, we continued our search for responsive documents. We have now completed our follow-up search regarding your [r]equest." Mr. Sommer indicated that a final agency response was forthcoming.
By letter dated July 9, 2008, Jon L. Fleischaker appealed from the disposition of Mr. Green's request on behalf of his client, The Courier-Journal, observing that Mr. Sommer's response did not comply with the Open Records Act from a procedural standpoint, as evidenced by 99-ORD-13, in which the Attorney General held that a response advising "that the agency is researching its files to determine if responsive records exist, and will respond as soon as it has completed its review is deficient." In further support, Mr. Fleischaker cited 93-ORD-134. Distinguishing 06-ORD-201, Mr. Fleischaker drew a direct analogy to City of Louisville v. Brian L. Cullinan, No. 1998-CA-001237-MR (Ky. App. August 1999) (unpublished) 3 and 00-ORD-207, asserting that if LAA requested the records Mortenson would "be obliged to turn them over." The Courier argues that the Attorney General "should hold that the records are public records governed by the Open Records Act" which must be disclosed.
On July 11, 2008, LAA issued a final response to The Courier Journal and Mr. Chilton, emphasizing that each request seeks documents which are not those of LAA, but are those of Mortenson, which is a private company rather than a public agency. Nevertheless, LAA "expended appropriate efforts to locate responsive public records, initially located none (and even pledged to conduct an additional review to confirm that the [LAA] has no copies of Mortenson's documents in its possession) and responded in good faith[.]" According to Mr. Sommer, the fact that the initial review disclosed no documents responsive to the requests is "unsurprising" given that Mortenson "is the third-party construction manager, at risk, and it is appropriate that it manage and communicate directly with its subcontractors. " 4
In subsequent correspondence, LAA confirmed this position by submitting a copy of a document entitled "Determination of Protest: M.A. Mortenson Company/Louisville Arena" to which this office attaches considerable weight. There the Finance and Administration Cabinet found that RAM had "not shown that Mortenson was acting as a mere agent or instrumentality of the LAA. Accordingly, Mortenson [is] a Construction Manager at Risk to the LAA, the full GMP [Guaranteed Maximum Price] has already been competitively bid, and Mortenson is not bound by the KMPD [Kentucky Model Procurement Code] in procuring subcontracts. " 5 According to Deputy Secretary Lori H. Flanery, "the KMPC applies to the initial solicitation of a lump-sum General Contractor or GMP Construction Manager and not to subsequent subcontracting by the General Contractor or Construction Manager within the confines of the General Contractor's lump sum or Construction Manager's GMP."
Distinguishing Cullinan, and relying on 02-ORD-208, LAA observes that a public agency is not required to create a record for the purpose of satisfying a request; nor does a public agency "have a duty to obtain the documents of its contractors. " In support of the latter proposition, LAA relies upon 06-ORD-201, a decision adopting 99-ORD-202, in which this office held that the Act "applies only to records which are in existence, and in the possession or control of a public agency. It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request." As such, LAA "is under no obligation to procure the documents of its contractor (s)" in order to respond to either of the requests "or any other request, for that matter."
As a result of LAA's "ongoing investigation" to satisfy the requests, it produced three "arguably responsive" records to both parties, 6 identified as follows:
1. 3/28/08 correspondence from M.A. Mortenson to [LAA's] Owner's Representative re: Confirmation of Limited Notice to Proceed;
2. 6/2/08 correspondence from M.A. Mortenson to [LAA's] Owner's Representative address [sic] re: Recommendation of Earthwork, Utility, & Deep Foundation Subcontractor; and
3. 3/31/08 HOK Sport Specifications: Construction Documents Bid Package No. 1 Earthwork, Site Utilities, & Deep Foundations - Volume 1-Procurement and Contracting Requirements Group (By Construction Manager).
In addition, LAA noted that a "subsequent search" revealed that it "is in possession of a copy of a one page spreadsheet document with no signature, the original of which is owned by [Mortenson]. Nothing on the document indicates that it is the final version of what it purports to be." Because LAA "did not prepare and does not own this document[,]" Mr. Sommer contends that it "is a casual possessor of the document," citing 00-ORD-229 (recognizing that the "concept of casual possession must be sparingly invoked," and is "only available" under very limited circumstances) in support of his position. "Upon information and belief," LAA contended that the document "is a confidential business record of Mortenson" which is not a "public record" under the authorities previously cited, and that if it were a public record it "may be a preliminary draft which is also exempt from disclosure pursuant to KRS 61.878(1)(j)." However, LAA "does not have sufficient information to ascertain the exact nature of the document."
In sum, LAA asserts that none of the provisions in the contract or related documents "support the conclusion that [LAA] has the sort of involvement which would make the subcontract documents public records. " Upon approval of Mortenson's recommendation, "it is Mortenson that awards the subcontract and enters the subcontract, not [LAA]." Section 8.02 of the Contract specifically provides "that nothing contained in the Contract documents or otherwise shall create any contractual relationship between owner and any subcontractor. " Likewise, Exhibit O contemplates that the awarding of subcontracts by Mortenson "will be a private, not a public process." In sum, the fact that LAA "has the right to approve subcontractors does not mean that [LAA] ever 'prepared,' 'owned,' 'used,' 'possessed,' or 'retained,' any of the underlying bidding documents used by Mortenson to determine which subcontractor to recommend to [LAA]."
On August 22, 2008, the Attorney General asked LAA, in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to provide this office with a copy of the single document in the possession of the agency being withheld, characterized as a "spreadsheet, " for in camera review. Although this office is not permitted to reveal the contents, the document is entitled "Louisville Arena & Parking Garage Earthwork, Utilities, & Deep Foundation Proposal Tabulation" and was apparently prepared on June 2, 2008; "spreadsheet" is a fair characterization. As the title suggests, the document contains, among other things, what are presumably the bid amounts from potential subcontractors, including Mr. Chilton's firm, RAM, for the "Earthwork & Utilities" work.
It is the decision of this office that because LAA is not a "casual possessor" of the spreadsheet and has not built a successful case for withholding it on the basis of KRS 61.878(1)(i) , mistakenly cited as (1)(j), 7 Mr. Green and Mr. Chilton are both entitled to receive a copy of the document. Nevertheless, this office finds that governing precedents otherwise validate the agency's disposition of the requests. Although both sides have raised compelling legal arguments and significant policy considerations in support of their positions, and the question is admittedly a close one, 99-ORD-202 and 06-ORD-201 are controlling on the facts presented.
Before addressing the crux of the matter, this office must briefly address the secondary issue regarding the accessibility of the "spreadsheet" in dispute. Insofar as the document, which Mortenson apparently prepared for LAA to review, contains no markings or indicia of any kind whatsoever, the agency's position regarding the confidential nature of the document is not persuasive in our view; nor is the lack of a signature necessarily determinative. As LAA concedes, "the concept of casual possession must be sparingly invoked," and is only available "where independent legal authority vests absolute custody and control of records in the entity from which the casual possessor obtained those records, and that entity has made clear its intent to retain custody and control. " 00-ORD-229, p. 6 (emphasis added). In the absence of any evidence to establish Mortenson's intent regarding this particular spreadsheet, erring on the side of openness is appropriate; this office is unwilling to assume that such a document falls into a protected category based on unspecified "information and belief," particularly when LAA had more than ample time in which to obtain "sufficient information to ascertain the exact nature of this document." Although LAA did not "prepare" the document and may not be the "official custodian, " LAA unquestionably possesses, and has presumably used the document, which is therefore a "public record" within the meaning of KRS 61.870(2), and must be produced since LAA has not satisfied its burden of proof relative to KRS 61.878(1)(i), the only exception cited. With regard to application of KRS 61.878(1)(i) and (1)(j), the analysis contained in 05-ORD-221 is controlling; a copy of that decision is attached hereto and incorporated by reference. Just as nothing conclusively establishes the finality of the document, nothing confirms the document retains preliminary status, even assuming that it can properly be characterized as a draft; again, this office must resolve uncertainty in favor of public access.
The Attorney General has approached the primary question presented in this appeal with great caution since Cullinan was issued, consistently recognizing that lack of actual possession is not a sufficient basis for denying access to records. Our holding today is not a departure from this line of reasoning. 8 Because the records being sought are not being held "at the instance of and as custodian on the [LAA's] behalf," this appeal is factually distinguishable. In any event, resolution of this matter, as previously indicated, turns on the application of 99-ORD-202 and 06-ORD-201.
At issue in 99-ORD-202 was a request to inspect "'any and all invoices or correspondence received by the Finance Cabinet related to the renovation and landscaping of the home of Kentucky State University President George W. Reid . . ., [and] all bids received by the Cabinet regarding the renovation project.'" Having otherwise complied, KSU advised the requester that "'the Cabinet does not receive copies of [records reflecting individual item costs, including] the invoices submitted by a subcontractor to the contractor, '" and therefore could not afford her access. 9 As in that decision, this office shares the requesters' view "that invoices [and records concerning subcontractor bid proposals] submitted by a subcontractor to a contractor under contract with the state are records in which the public has a legitimate interest, and are, ostensibly at least, public in character insofar as they reflect the expenditure of public funds." Id., p. 2. In fact, had the records in dispute been submitted to LAA, "they would be accessible as non-exempt public records. " Id. As the Attorney General has consistently noted, "'[a]mounts paid from public coffers are perhaps uniquely of public concern . . . [, and] the public is entitled to inspect records documenting exact amounts paid from public monies . . .'" Id., citing OAG 90-30, p. 3. Thus, "'[a] contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs . . . [including] the risk of closer public scrutiny than might otherwise be the case.'" Id., citing OAG 90-7, p. 6. That being said, proposals from the subcontractors, which are based on the specific evaluation criteria outlined in the RFP, 10 are sufficiently analogous in character to such invoices for the reasoning of 99-ORD-202 to apply on these facts. Based upon the following, the Attorney General is "not empowered to declare, in the context of an open records appeal, that [LAA's] failure to require that the records be submitted to it, and managed and maintained as public records, constitutes a violation of the Open Records Act. " Id. (Emphasis added.)
LAA is entitled to a "review" of specified information, but a review of the contractual provisions implicated confirms that LAA is not entitled to access the actual bid proposals or related documents aside from "an executed copy of all Subcontracts entered into," a copy of which the Owner's Representative may acquire upon request. Likewise, Article 8, Section 8.02 does, in fact, provide that "nothing contained in the Contract documents or otherwise shall create any contractual relationship between Owner [LAA] and any Subcontractor. " In addition, Section 8.02 provides that "no trade contract or sub-subcontract shall relieve CM-at-Risk of its responsibilities and obligations should any Subcontractor or sub-subcontractor fail to perform its work in a satisfactory manner." To the contrary, "CM-at-Risk [Mortenson] agrees to be as fully responsible to Owner for the acts and omissions of its Subcontractors and their sub-subcontractors and of persons either directly or indirectly employed by them as it is for the acts and omissions of persons directly employed by it." According to Section 9.3 of Article 9, LAA has no independent obligation to pay "any monies to any Subcontractor or sub-subcontractor." Section 1.4 of Exhibit O, which prevails in the event of any conflict between Section 8.03 of the Contract and the provisions of Exhibit O, provides that Mortenson shall "conduct a private opening of subcontractors' submittals[,]" and that [u]pon private opening of proposals from the short-list of candidates, Construction Manager shall make a recommendation to [LAA] for award of the applicable subcontract. " Finally, Section 27.14 of Article 27 provides: "Notwithstanding any provision herein to the contrary, it is the intent of this Agreement that CM-at-Risk shall in all events be acting hereunder as an independent contractor and never as an agent of or joint venturer with Owner."
Although the General Assembly has recognized "an essential relationship" between the intent of the Open Records Act and the intent of Chapter 171 of the Kentucky Revised Statutes, relating to management of public records, at KRS 61.8715, the Act only applies to "public record [s]," a term which is expansively defined at KRS 61.870(2). 11 Early on, this office clarified:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277); 99-ORD-202. Here, as in 99-ORD-202, the "custodian" of the records in dispute is a private company (Mortenson) under contract with a public agency (LAA). Because a private contractor such as Mortenson cannot be properly characterized as a "public agency" within the meaning of KRS 61.870(1), 12 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. " Id., p. 3. Nor are they held "at the instance of and on behalf of" LAA.
In so holding, the Attorney General relied on 95-ORD-125, in which this office held that the Louisville Firefighter Pension Fund properly denied a request for "confirmation tickets" documenting investment transactions executed on its behalf by a private corporation hired to manage the assets of the agency. Because the Fund neither possessed nor used the documents, the "confirmation tickets" could not properly be characterized as "public records" within the meaning of KRS 61.870(2). 13 At page 6, the Attorney General reasoned:
Although the Fund was entitled to the confirmation tickets from the investment company, it determined they were not needed because information contained in them [was] adequately set out in the monthly accounting statements.
It is not the function of this office, in an open records appeal, to substitute its judgment or the judgment of a third party for that of a public agency in deciding what records need to be created or retained. Under the facts of this case, the Fund acted consistently with the provisions of the Open Records Act.
In reaffirming this position, the Attorney General partially relied on the Kentucky Central Life Insurance Company opinion, which, in relevant part, held that "[t]he company's records should not lose their private status simply because the rehabilitator has used, possessed, or has access to them." Id. at 335; 99-ORD-202.
Further support was found in
Forsham v. Harris, 445 U.S. 169, 186, 100 S. Ct. 978, 987, 63 L. Ed. 2d 293 (1980), and
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S. Ct. 960, 969, 63 L. Ed. 2d 267 (1980), in which the United States Supreme Court held that "an agency must first either create or obtain a record as a prerequisite to it becoming an 'agency record' within the meaning of [the Freedom of Information Act, 5 USCS § 552]." Forsham at 63 L. Ed. 2d 305. In rejecting the notion that a public agency's right of access, and the corollary right to obtain custody of records brought same within the purview of the FOIA, the Supreme Court determined that "FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained." Forsham at 63 L. Ed. 2d 307. Conceding that the Open Records Act does not track the language of the FOIA, in 99-ORD-202 this office noted the laws are identical in at least one critical respect: "Neither law imposes a duty on the public agency to create records." Id., p. 5. Accordingly, the Attorney General concluded that the holding in Forsham "applies with equal force to agencies governed by the Open Records Act. " Id. More specifically, ordering a public agency to exercise its right of access would effectively be "compelling the agency to 'create' an agency record since prior to that exercise the record was not a record of the agency." Forsham at 63 L. Ed. 2d 308. This we may not do.
In light of the foregoing, the Attorney General found in 99-ORD-202 that the requester had not crossed the two legal thresholds established in OAG 82-27; the same must be said here. The Kentucky Open Records Act "applies only to records which are in existence, and in the possession or control of a public agency. It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request." 99-ORD-202, p. 5. That being said, a public agency is not permitted to "somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " Id.
More recently, this office was asked to decide whether the Kenton County Public Library had violated the Open Records Act in the disposition of requests for documents relating to two private subcontractors to Morel Construction Company, the general contractor on a public construction project. 06-ORD-201. In holding that the Library had properly denied the requests "on the basis that it could not produce for inspection nonpublic records that were not in its custody or control[,]" this office relied exclusively on the reasoning of 99-ORD-202, emphasizing that nothing in the record on appeal suggested that the records "were secreted away on private premises, nor is there any authority cited for the proposition that the contractor was legally obligated to provide the Library with itemized documentation relating to payroll expenditures. " 14 06-ORD-201, p. 2, note 3. Accordingly, the relationship between the Library and the subcontractors was "simply too attenuated" for this office to apply the holding in Cullinan. Id. In our view, the relationship between LAA and Mortenson is far less attenuated, if not enough so as to render the reasoning of 99-ORD-202 and 06-ORD-201 inapplicable; Cullinan is merely distinguishable insofar as the records in dispute are not being held "at the instance of and as custodian on [LAA's] behalf, thus conforming to KRS 61.870(6) ." Id. at p. 4. 15
When viewed as a whole, through the prism of the Bid Protest Determination issued by the Finance and Administration Cabinet, these contractual provisions validate LAA's position relative to Mortenson's degree of autonomy in awarding subcontracts, 16 the lack of direct involvement by LAA other than a right of "final veto," and consequently, its characterization of the records in dispute. Like the requesters in both 99-ORD-202 and 06-ORD-201, Mr. Green and Mr. Chilton have not crossed the two legal thresholds established in OAG 82-27; accordingly, the denials must be affirmed.
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 Mr. Chilton is the Vice-President of RAM Engineering & Construction, Inc., an unsuccessful bidder on the arena project.
2 Questioning the contention that such records do not exist, Mr. Chilton noted that a public agency is required, at a minimum, "to identify what steps were taken to locate the records." One of those steps, in his view, should have been to determine whether Mortenson has the records. According to Mr. Chilton given the documented relationship between LAA and Mortenson, "it is clear that records relating to subcontract bidding and awards in the physical possession of Mortenson are effectively within the custody and control" of LAA. With regard to whether a proper search was conducted, Mr. Chilton's point is well-taken; the LAA's response(s) was deficient in failing to identify the steps taken by the agency to locate any responsive documents.
3 City of Louisville v. Brian L. Cullinan is an unpublished opinion which, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court within Kentucky. In Cullinan the court determined that records held "at the instance of and as custodian on the [agency's] behalf" were public records even though the records were not maintained on agency premises.
4 "As an aside," Mr. Sommer notes that LAA "has diligently overseen and continues to oversee the construction of the Louisville Arena." However, LAA's "charge is not the micro-management of its contractors and their subcontractors and their vendors and their vendors' vendors, etc.; rather, it is oversight, and Mortenson . . . has the expertise to manage" this process, with "appropriate oversight" by LAA, some of which is contracted out to the LAA's Owner's Representative, PC Sports, LLC.
5 Pursuant to KRS 45A.030(6):
"Construction management-at-risk" means a project delivery method in which the purchasing officer enters into a single contract with an offeror that assumes the risk for construction at a contracted guaranteed maximum price as a general contractor, and provides consultation and collaboration regarding the construction during and after design of a capital project. The contract shall be subject to the bonding requirements of KRS 45A.190.
6 On appeal, Mr. Chilton advises that the final document(s) is a "227-page book of project specifications that all vying subcontractors, including my company, received."
7 KRS 61.878(1)(j) applies only to "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[,]" whereas KRS 61.878(1)(i) applies to "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency [.]" (Emphasis added.) LAA characterizes the document as a "draft."
8 See 06-ORD-147 (private engineering firm serving as custodian of records on behalf of Tri-County Regional Airport Board); 05-ORD-015 (unidentified private entity had physical custody of records concerning settlement agreement); 04-ORD-123 (drainage records in physical custody of City's independent attorney); 00-ORD-207 (settlement agreement in physical custody of insurance carrier). All of these decisions were issued following Cullinan but share a critical distinction - the records in dispute were "prepared, owned, and used at the instance of" the public agency.
9 More specifically, KSU explained:
There are no requirements that the contractor provide the Cabinet with pay documents showing what he paid for each individual item that makes up the project because the contractor must perform the work in the contract for the bid amount. Individual item costs are not relevant. . . . Should any of the work or items that are outlined in the IFB specifications fail to meet the standards of the contract, then the [C]abinet has several options. These include requiring the contractor to remove the work and redo it, deducting the cost of fixing the item from his contract amount and redoing the work, taking the contractor to court to enforce the contract, or applying a combination of these options.
99-ORD-202, p. 2. Likewise, Section 5.07 of Article 5 of the Contract, for example, gives LAA the right to withhold payment, in whole or in part, from Mortenson "to such extent as may be necessary to reasonably protect [LAA] from any" of a list of potential complications.
10 According to § 1.5 of Exhibit O, Subcontractor Procurement Process, examples of such criteria include, but are not limited to price, fee, project approach, qualifications, mark-up, technical competence, key personnel, relevant experience, financial stability, project costs, community participation, safety record, and bonding capacity.
11 KRS 61.870(2) defines "public record" as "all books, papers, maps, photographs, cards, types, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "
12 Neither appellant disputes Mortenson's status, focusing instead on whether the records nevertheless qualify as "public records" within the meaning of KRS 61.870(2).
13 See also 96-ORD-41 (holding that Department of Military Affairs properly denied request for documents relating to vending services at air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession); 97-ORD-15 (holding that University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the document resided); 98-ORD-90 (holding that a correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request).
14 Although LAA contends that 06-ORD-201 is directly on point, a credible argument can be made that payroll documents are significantly different in kind from documents relating to bid proposals; however, the ability to monitor the expenditure of public funds is the commonality which renders the same reasoning applicable in both cases.
15 Significantly, the Court resolved the question "as to custody and possession" of the "routine billing documents" in dispute based on the law firm's assertion that it had "'not been granted permission by our clients to disclose'" the records. Id.
16 Under Section 2.08 of Article 2, Mortenson "shall develop Subcontractor interest in the Project and as the Drawings and Specifications are completed, take competitive bids when appropriate, or, if applicable, responses to requests for proposals on work packages. " In addition, the "CM-at-Risk shall distribute any and all bidding documents, bid packages, and, if applicable, proposal requests, conduct pre-award and post-award conferences with bidders or proposers as necessary to determine the successful bidders or proposers considering the interests of the Work."