23-ORD-001
January 3, 2023
In re: Nick Wallingford/Finance and Administration Cabinet
Summary: The Finance and Administration Cabinet (“the Cabinet”)
violated the Open Records Act (“the Act”) when it partially denied a
request for records without citing the specific exemption on which it
relied to deny the request. However, the Cabinet did not violate the Act
when it withheld records pertaining to the state procurement process
under KRS 61.878(1)(o) because the contract had not yet been awarded
at the time of the request.
Open Records Decision
Nick Wallingford (“Appellant”) submitted a request to the Cabinet for the “full
solicitation file” related to a specified Request for Proposal (“RFP”). The Cabinet
granted the request in part and denied it in part. The Cabinet produced records of its
solicitation for bids but denied inspection of submitted bids “in accordance with the
provisions of [KRS] 61.878” because “the contract award was not yet final.” This
appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant or deny the request. KRS 61.880(1). If it denies
the request, the agency’s response “shall include a statement of the specific exception
authorizing the withholding of the record and a brief explanation of how the exception
applies to the record withheld.” Id. (emphasis added). However, the Cabinet’s
response did not cite the specific exemption on which it relied and merely cited KRS
61.878 without citing which of the 18 listed exemptions applied. Moreover, the
Cabinet’s initial response failed to explain how any of the exemptions in KRS 61.878
applied to the records it withheld. Accordingly, the Cabinet’s initial response failed
to comply with KRS 61.880(1). It therefore violated the Act.On appeal, the Cabinet cites KRS 61.878(1)(o) as the particular exemption on
which it relied to withhold the submitted bids. Under KRS 61.878(1)(o), “[r]ecords of
a procurement process under KRS Chapter 45A or 56” are exempt from disclosure
until “[a] contract is awarded” or “[t]he procurement process is canceled without
award of a contract and there is a determination that the contract will not be
resolicited.”
Here, the Appellant appeals the Cabinet’s denial of bids submitted in response
to a specific RFP.1 Both parties agree the Appellant submitted his request
approximately one hour after the bids had been submitted. Clearly, the Cabinet could
not have reviewed the bids and awarded the contract in one hour. Indeed, the Cabinet
continues to assert on appeal that the contract still has not been awarded. Once the
contract is awarded, the requested records will be subject to inspection unless another
exemption applies. But because the contract had not yet been awarded at the time of
the Appellant’s request, the Cabinet properly withheld the submitted bids under
KRS 61.878(1)(o).
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 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#449
Distributed to:
Nick Wallingford
Cary B. Bishop
1
The Appellant relies on FAP 111-35-00(11), which states, “At the time designated for bid closing,
online and paper copy bids shall be opened and made available to the public by reading, if practical.”
However, that policy applies to a “Competitive Sealed Bidding” procurement which is initiated by a
“Request for Bids” (RFB). See FAP 111-35-00(1). Here, the Appellant has requested records related to
a competitive negotiation procurement initiated by an RFP. See FAP 111-57-00. Thus, FAP 111-35-
00(11) does not require disclosure of the requested records.