Wednesday, March 30, 2005
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City May Not Keep RFP Responses Secret During Negotiations With Bidder, Appeals Court Rules
By DAVID WATSON, Staff Writer
The City of Los Angeles may not keep submissions received in response to a request for proposals secret while it completes negotiations with a successful bidder, this district’s Court of Appeal ruled yesterday.
Writing for Div. Five, Justice Orville Armstrong said Los Angeles Superior Court Judge Dzintra Janavs erred in denying a mandate petition brought by Michaelis, Montanari & Johnson, a Westlake Village law firm that represents entities doing business with the city’s Department of Airports, also known as Los Angeles World Airports. Janavs, Armstrong said, incorrectly applied the balancing test required under Government Code Sec. 6255, part of the California Public Records Act.
Presiding Justice Paul A. Turner concurred, but Justice Richard M. Mosk dissented, arguing that substantial evidence supported Janavs’ finding that the public interest in nondisclosure clearly outweighed the interest served by disclosure.
The law firm sought copies of bid proposals for the lease of a hangar facility at the Van Nuys airport. The firm made its request after the deadline for submitting proposals had passed, but before the LAWA board had decided to which bidder the lease would be awarded.
The city agreed to provide copies of the proposals, but said it would do so only after negotiations with the successful bidder were complete.
It conceded the proposals were subject to the CPRA, but cited Sec. 6255, which permits an agency to withhold records if “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
Janavs ruled it did, but Armstrong said the city “failed to demonstrate there is a ëclear overbalance’ in favor of delaying disclosure.” He went on to explain:
“A lease of airport facilities is a lucrative proposition for both the airport and the lessee. LAWA has implemented strict guidelines for the awarding of such leases. The public has a significant interest in knowing, prior to LAWA’s awarding a project to the bidder of its choice, whether LAWA has acted in accordance with those guidelines or, conversely, whether it has afforded any favoritism or advantage to certain individuals or entitiesÖ.Members of the public might also be able to point out possible errors or omissions or simply offer their perspectives on the proposed projects. The public cannot have that opportunity if the proposals are kept secret until after the City not only chooses the successful bidder, but concludes its negotiations.”
The justice noted that the city’s lawyers argued “premature” disclosure of the proposals could jeopardize its negotiating position. But he said the city “never satisfactorily explained, either in its briefs or at oral argument, just how” this might be the case or “why keeping the contents of the proposals a secret is in the public’s best interests.”
He added:
“[T]he City’s negotiating position could only be enhanced by the successful bidder knowing that if its negotiations with the City are not fruitful, there are competitive proposals waiting in the wings should the City ultimately decide to reject that proposal altogether. Thus, disclosure of the contents of all proposals prior to the final negotiations can only benefit the public.”
In his dissent, Mosk said the majority had not given appropriate deference to Janavs’ weighing of the evidence in favor of delaying disclosure.
“[W]hile we may weigh the competing public interest factors de novo,” he said, “we must assume that the trial court made certain findings as to the existence of those ëfacts of the particular case’Öthat support the judgment, so long as those findings are supported by substantial evidence.”
The dissenting jurist reasoned:
“Public scrutiny of the lease process and accountability of the decisionmakers will be served better after the negotiating process, LAWA’s decision, and, perhaps, after the actual decision to award the lease contract by the Board. Those interested in the integrity of the City’s decisionmaking practices will be able to make such an evaluation after decisions are actually made. The idea that members of the public should have input into the selection of, and negotiation with, potential lessees would add undesirable pressures, political and otherwise, to the process.”
The Michaelis firm, he said, had “not identified any public benefit for disclosure at the time of its request.”
The city’s bargaining position could be impaired by disclosure of the bids while negotiations were going on, Mosk argued, since the negotiating bidder “would no longer be in doubt as to its relative bargaining position.”
Garry L. Montanari and Nathan B. Rand of the Michaelis firm represented it on appeal. The city was represented by Deputy City Attorney Lynn Mayo.
The case is Michaelis, Montanari & Johnson v. Superior Court (City of Los Angeles), B178884.
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