Alabama Supreme Court Finds Health Care Authority Subject to the Open Records Act and Hospital Bid Materials Subject to Disclosure
The Alabama Supreme Court recently ruled that a public corporation (“Health Care Authority”) that owned several hospitals was a “local government entity” and therefore subject to the state’s Open Records Act. Tennessee Valley Printing Company, Inc. v. Health Care Authority of Lauderdale County and the City of Florence, --- So.3d ----, 2010 WL 4272678 (Ala.). Despite the Health Care Authority’s protestations, the Court found that the corporation’s assets had been accumulated through use of statutorily-authorized governmental powers, including eminent domain and issuance of tax-free bonds, and that the corporation could not sell substantially all of its assets without prior approval of an authorizing government subdivision.
Promising confidentiality to bidders, the Heath Care Authority invited bids to acquire Authority hospitals. The Court found that the documents relating to the final sale of the hospitals, including bids and a letter of intent from the winning bidder, could be disclosed under the Alabama Open Records Act. The Court noted that, “a private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential. The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government.” The Court then rejected the Health Care Authority’s two proposed exemptions, finding that the exemption for recorded information received by a public officer in confidence was inapplicable, as was the exemption for records which, if disclosed, would be detrimental to the best interest of the public.
Washington’s Public Records Act (“PRA”) does not have a general exemption for bid materials. And, there is no Washington case law interpreting this issue. However, it is likely that Washington courts would come to the same conclusion as the Alabama Supreme Court. Confidentiality is not a stand-alone exemption, and bidders cannot rely on that designation to prevent disclosure of their materials. See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure). To prevent disclosure, records must fall under a specific PRA exemption category, such as “trade secrets” (or other statutory provisions that may limit disclosure of contract proposals). And, if portions of a record fall under one of the statutory exemption categories, an agency may still release the record with redactions.
