Future projects like Frankfort’s Capital Plaza redevelopment could be shrouded in an extra layer of secrecy if the General Assembly passes a bill introduced in the House on Thursday.
House Bill 216, sponsored by state Rep. Jason Petrie, R-Elkton, would amend Kentucky’s Open Meetings Act to exempt committees that award so-called “built-to-suit” contracts, a type of public-private partnership, from its requirements. The bill would also amend Kentucky’s Open Records Act to conceal the identities of committee members as well as records of the procurement process until after a contract is awarded.
The matter is central to a lawsuit that the Finance and Administration Cabinet filed against a State Journal reporter in November. In that case, the cabinet is seeking to overturn an attorney general’s decision last month that concluded such committees — in particular, the committee charged with selecting a developer to demolish and replace the Capital Plaza Tower — are subject to the Kentucky Open Meetings Act.
The State Journal filed a formal appeal with the Attorney General’s Office in September after the newspaper’s repeated requests for copies of meeting schedules, minutes and other records identifying members of the Capital Plaza redevelopment project’s Built-to-Suit Selection Committee were denied. The subsequent decision, signed by Attorney General Andy Beshear and Assistant Attorney General Matt James, said, “Finance does not provide any valid legal reason for the Committee not to comply with the Open Meetings Act.”
The cabinet has argued that an “overbroad interpretation” of the Open Meetings Act could “undermine the confidentiality of the procurement process by exposing evaluation team members to great risk of improper contact, lobbying, and public opinion pressure, especially when a procurement is the subject of strong community opinions.”
“Upon the award of any public solicitation, the Finance and Administration Cabinet has always maintained a longstanding practice of releasing almost all records related to the award, inclusive of all bids, composition of any evaluation team, bid score, and the final terms agreed to,” the cabinet wrote in its suit.
“For over 40 years I have upheld the integrity of the procurement process — particularly from those who seek to dismantle sensitive competitive negotiations, especially when upon contract award all information on this selection process will be available for public review,” Finance Cabinet Secretary William Landrum said in October.
The Capital Plaza redevelopment contract was awarded to Lexington-based developer-contractor team CRM/D.W. Wilburn on Dec. 19. The cabinet has yet to provide The State Journal with copies of the bids, despite the newspaper’s filing an open-records request on Dec. 22.
“We are still in the process of gathering all the requested documents,” Traci Walker, the Finance and Administration Cabinet’s custodian of records, responded in an email dated Jan. 9.
According to the Open Records Act, a public agency is required to provide records within three business days unless it gives a “detailed explanation of the cause” for the delay. Neither Walker nor spokeswoman Pamela Trautner responded to a subsequent request for a detailed explanation of the delay.
“We really want to understand the rationale for departing from the statutory language that till now has required a portion of the meeting to be conducted publicly,” said Director of the Bluegrass Institute’s Center for Open Government Amye Bensenhaver, who is representing The State Journal in its case. “There is a problem with restricting the public’s right of access.”
Petrie, the sponsor of new bill, says “in general sunshine is better” but that the Finance Cabinet during this legislative session brought to his attention “some ambiguity” in the procurement process it uses. He says he’s still “open to discussion.”
“I’m interested in making sure we have good legislation,” he told The State Journal.
Trautner did not respond to a request for comment Friday.