April 19, 2002
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your letter of March 21 in which you sought guidance concerning access to a certain kind of record.
Specifically, if an a town seeks bids for auditing services and an auditing firm sends the town a "letter of engagement", you asked whether that document is available under the Freedom of Information Law. You indicated that a town official informed you that an engagement letter was received and later revised and that only the "new, revised copy" must be disclosed.
From my perspective, if the initial version of the letter of engagement continues to exist, it is likely accessible under the Freedom of Information Law. In this regard, I offer the following comments.
First, the Freedom of Information Law is expansive in its coverage, for it includes within its scope all records of an agency, such as a town. Section 86(4) defines the term "record" to mean:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based on the foregoing, whether a document is an initial, preliminary or final version, I believe that it clearly constitutes a "record" subject to the Freedom of Information Law.
Second, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.
In my view, the only ground for denial of possible significance in the situation that you described would be §87(2)(c), which authorizes an agency to withhold records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations..." In the context of bidding, if the deadline for submission of bids has not yet occurred, disclosure of bids submitted prior to the deadline would in most instances "impair" the fairness of the process and possibly prevent an agency from receiving a bid optimal to taxpayers. Disclosure in that circumstance could enable a firm to submit a bid lower than those of other bidders or perhaps enable the firm to know the highest price that might be paid by the agency. However, if the deadline for submission of bids has been reached, any impairment as described above would essentially have disappeared.
If indeed the deadline for submission of bids has been reached, and particularly if a contract has been awarded, I believe that the records in question, irrespective of which version of the letter of engagement might be of interest, would be accessible. Again, in that circumstance, I do not believe that any of the grounds for denial of access could appropriately be asserted.
I hope that I have been of assistance.