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October 29, 1996

 

 

Mr. Michael Caputo
Democrat and Chronicle
55 Exchange Boulevard
Rochester, NY 14614-2001

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Caputo:

I have received your letter of October 15 in which you requested an advisory opinion concerning the propriety of a denial of access to records by Monroe County.

According to your letter, following a decision to privatize the operation of three County golf courses, the County issued a request for proposals ("RFP") for contractors to manage the golf courses. Six proposals were submitted by the deadline set by the County, and a committee established by the County selected Jack Tindale, Inc. ("Tindale"). The contract with that firm is currently under negotiation and is subject to approval by the County Legislature. You added that the County is not negotiating with any other submitter of an RFP. After the announcement to the selection of Tindale, you requested release of all six proposals. The County denied both your initial request and your appeal, citing §87(2)(c) of the Freedom of Information Law and contending that disclosure "could impair present or imminent contract awards and could impair ongoing collective bargaining negotiations."

From my perspective, it is doubtful that the County could justify a denial of access. In this regard, I offer the following comments.

First, 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.

Second, as suggested in the response to your request and appeal, relevant is §87(2)(c), which enables agencies to withhold records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations." In my view, the key word in the quoted provision is "impair", and the question involves how disclosure would impair the process of awarding a contract.

Section 87(2)(c) often applies in situations in which agencies seek bids or RFP's. While I am not an expert on the subject, I believe that bids and the processes relating to bids and RFP's are different. In the traditional competitive bidding process, so long as the bids meet the requisite specifications, an agency must accept the low bid and enter into a contract with the submitter of the low bid. When an agency seeks proposals by means of RFP's, there is no obligation to accept the proposal reflective of the lowest cost; rather, the agency may engage in negotiations with the submitters regarding cost as well as the nature or design of goods or services, or the nature of the project in accordance with the goal sought to be accomplished. As such, the process of evaluating RFP's is generally more flexible and discretionary than the process of awarding a contract following the submission of bids.

When an agency solicits bids, but the deadline for their submission has not been reached, premature disclosure to another possible submitter might provide that person or firm with an unfair advantage vis a vis those who already submitted bids. Further, disclosure of the identities of bidders or the number of bidders might enable another potential bidder to tailor his bid in a manner that provides him with an unfair advantage in the bidding process. In such a situation, harm or "impairment" would likely be the result, and the records could justifiably be denied. However, when the deadline for submission of bids has been reached, all of the submitters are on an equal footing and, as suggested earlier, an agency is generally obliged to accept the lowest appropriate bid. In that situation, the bids would, in my opinion, be available, even before a contract has been signed.

In the case of RFP's, even though the deadline for submission of proposals might have passed, an agency may engage in negotiations or evaluations with several of the submitters resulting in alterations in proposals or costs. Whether disclosure at that juncture would "impair" the process of awarding a contract is, in my view, a question of fact. In some instances, disclosure might impair the process; in others, disclosure may have no harmful effect or might encourage firms to be more competitive, thereby resulting in benefit to the agency and the public generally.

In this case, the County has selected the contractor; it is not negotiating and evidently has no intent to negotiate with any other submitter of an RFP. If that is so, I do not believe that there would be a basis for withholding, for disclosure would not in any apparent way "impair" the contracting process. I point out that it has been held that bids are available after a contract has been awarded, and that, in view of the requirements of the Freedom of Information Law, "the successful bidder had no reasonable expectation of not having its bid open to the public" [Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc. 2D 951, 430 NYS 2D 196, 198 (1980)]. While the cited decision involved a request for the winning bid and related documents, I believe that it is implicit the other bids would be available, for disclosure would have no impact, i.e., "impairment", relative to this process.

Claims have been made in situations similar to that described in your letter that proposals and other records pertaining to the RFP process may always be withheld prior to the final award of a contract. In general, I have disagreed with those kinds of blanket assertions. Again, unlike the bid process in which an agency essentially has no choice but to accept the low appropriate bid, in the RFP process, the figures offered by submitters are subject to negotiation and change; they do not reflect the "bottom line." In view of the flexibility of the process, it is difficult to envision how disclosure of those figures would adversely affect an agency's ability to engage in the best contractual arrangement on behalf of the taxpayers.

It has also been contended that the kinds of records at issue should be withheld because the negotiations with the apparently successful submitter may not culminate in an agreement or may be rejected by the ultimate decision maker, such as the County Legislature in this instance. It is my understanding that the RFP process is intended to encourage creativity on the part of submitters so that they can offer the best possible solutions in terms of an agency's needs or goals. That being so, and because proposals are subject to negotiation and alteration, even if the apparently successful proposal is rejected or set aside for some reason, the agency is not bound but rather is free to continue to attempt to engage in an optimal agreement. If anything, disclosure might encourage submitters to better accommodate the needs of the agency or propose what might be characterized as a better deal. Rather than impairing the process, disclosure might enhance it.

It is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

Lastly, I recognize that the County referred to the impairment of collective bargaining negotiations. It is unclear whether the responses merely referred to the elements of §87(2)(c) in their entirety, or whether collective bargaining negotiations are in some way pertinent to the matter. Nevertheless, in view of the disclosures that have already been made, particularly the County's public expression of its intent to privatize and its selection of a contractor, it does not appear that the component of §87(2)(c) relating to collective bargaining is especially critical.

In an effort to encourage the County to reconsider its position, copies of this opinion will be forwarded to County officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Richard F. Mackey
John Riley