Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Union County Airport Board ("Airport Board") violated the Open Records Act in its disposition of Robert Frazer's March 11, 2019, open records request. We conclude that the Airport Board violated the Open Records Act by failing to provide the requested non-exempt records.
On March 11, 2019, Appellant submitted an open records request to the Union County Airport Board, requesting bid packets related to an "Airport Farm Lease." The bid in question was awarded on March 5, 2019. The Airport Board responded to Appellant that they believe "portions of the information contained in the packets are covered under exemptions" and, therefore, not subject to the Open Records Act. The Airport Board reported that each bid packet contains an actual cash rent bid price, a confidentiality agreement, a résumé, two credit references, two business references, and evidence that the successful farmer could obtain the necessary insurance as required by the Airport Board. The Airport Board asserted the résumés and references were personal in nature and exempt according to KRS 61.878(1). 1 Further, the Airport Board asserted that the actual cash bid was "proprietary" and protected by KRS 61.878(c)(1). 2 Appellant initiated this appeal on March 26, 2019. In response to the appeal, the Airport Board declined to make further arguments.
This office finds that the bid packages should be disclosed under the Open Records Act. The Kentucky Model Procurement Code defines the bidding process for local governments as to contracts or purchases. KRS 45A.350. According to KRS 45A.365, notice of the invitation for bids is given by newspaper advertisement. KRS 45A.365(3); 424.260. Once the bids are opened at the time and place designated in the invitation, the bids are open to public inspection. KRS 45A.365(4). "The bid invitation, correspondence pertaining to the bids and the bids themselves are public records subject to the Open Records Act" unless exempted by the provisions of KRS 61.878. See 84-OAG-316; 85-OAG-119; 91-OAG-644; 89-OAG-31; 11-ORD-070. Even apart from the Open Records Act, bidding documents are open to public inspection after the bids have been opened pursuant to KRS 45A.080(4). The Airport Board alleges various exemptions, none of which apply here.
First, the résumés and reference contacts are not protected from disclosure by KRS 61.878(1)(a), which protects "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " 3 To determine whether certain personal identifying information is excludable under the Act the request is analyzed on a "case-by-case" basis, weighing the privacy interest of the individual against the public's interest in disclosure. 11-ORD-046. See Cape Publications v. City of Louisville, 147 S.W.3d 731, 735 (Ky. App. 2003).
This office has, on occasion, found résumés exempt from disclosure under the Act due to the privacy interests of individuals involved. For example, this office has consistently affirmed an agency's denial of access to résumés of unsuccessful job candidates on the basis of KRS 61.878(1)(a). See 90-OAG-113; 95-ORD-38; 96-ORD-1; 97-ORD-72; 00-ORD-90; and 02-ORD-221. "These opinions were premised on the notion that disclosure might embarrass or harm applicants who fail to get a job. " 10-ORD-227 (quoting 02-ORD-221).
In contrast, this office has not found résumés exempt from disclosure "when the applicant's identity [is public] and the fact of application [has been] publicly acknowledged by the applicant." 10-ORD-196. See also 03-ORD-084; 11-ORD-046; 10-ORD-227. When an applicant "throws their hat in the ring," their privacy interests are reduced and "must yield to the heightened public interest in disclosure. " 11-ORD-046.
Using the rationale behind exemption of résumés in the employment context, because the bids in question must be publicly disclosed according to the Act, the bidders in question have a reduced privacy interest that does not outweigh the public interest in disclosure. 4 Though this office has not encountered this precise fact pattern, the lowered privacy expectations in placing a public bid pursuant to KRS 45A mandates release of the résumés at issue here.
Further, the actual cash bids are not proprietary information exempt from disclosure under 61.878(1)(c)1. 5 Quoting 96-ORD-135, this office has considered the application of KRS 61.878(1)(c)1. to protect bid proposals from disclosure and held that, after the bidding process is complete and a bidder is chosen, the agency "must release the documents included in the sealed bid package in their entirety ." 05-ORD-001 (emphasis added).
However, "this office has recognized that bid proposals which contain secret commercial valuable plans and formulas may qualify for exclusion under KRS 61.878(1)(c)[(1)]. " 96-ORD-135. The office has on occasion protected Requests for Proposals (RFPs), because, in contrast to a "typical advertisement for bids, " "the agency states its objectives and requests that the bidders propose a plan, which includes the method and equipment to be used, and that the bidders demonstrate that they have the personnel and capability to accomplish the objective." Id. See, e.g. , 83-OAG-256 (exempting an RFP, which described in detail "the various items of equipment which [would] be used in performing the services, disclose[d] the personnel which [would] be relied upon and include[d] biographic information of individuals in the employ of the company, contain[ed] charts, maps, diagrams -- all of which ha[d] been especially designed and organized"); 88-OAG-1 (exempting RFP containing consolidated financial statements, project narratives, summary experience charts, work plans, and pricing schedules); Marina Mgmt. Serv., Inc. v. Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995) (holding exempt records containing "information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income"); Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766, 767 (Ky. 1995) (exempting an application containing "a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability.).
The situation here is easily distinguishable from the cases cited above. The Airport Board has identified no "secret commercial valuable plans and formulas, " but states the requested bid packets contain only a résumé, the price of the bid, and reference contacts. These pieces of information do not rise to the level of secrecy typically protected by KRS 61.878(1)(c)1, and this office declines to extend the exemption. Accordingly, the Airport Board must make the records available for Appellant's inspection.
A party aggrieved by this decision may appeal it by initiating an 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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