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.