Q: The local school district responded to my request for copies of the proposals submitted for annual bond performance audits as follows, ”The District is unable to produce the requested information until after the contract has been awarded.” What is your opinion?
A: Unfortunately, there is a California Supreme Court decision in which the court said that a response to a request for proposal (“RFP”) was not required to be disclosed to the public during the negotiation process.
The Court stated that while the “public may have a legitimate and substantial interest in scrutinizing the process leading to the selection of the winning proposal,” such scrutinization can just as effectively take place after the negotiations are completed but before the government agency approves the contract. Michaelis, Montanari & Johnson v. Sup. Ct., 38 Cal. 4th 1065, 1073 (2006).
While you may be able to distinguish the facts of your situation from the facts of the Michaelis case (which involved an RFP related to real estate acquisition), this case makes it generally quite difficult to force an agency to disclose RFP responses until a contract has been awarded.
Of course, once the contract is awarded, presumably the contract would be subject to disclosure under the Act. You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.