Access counselor doubts city’s need for secrecy on justice center RFP

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Indiana Public Access Counselor Luke Britt told the city of Indianapolis that he wasn’t swayed by its reasons for withholding its request for proposals for a new $500 million criminal justice complex.

“The burden is on the public agency to justify the denial,” Britt said in a letter sent Thursday to IBJ and the city’s Office of Corporation Counsel. “I do not believe the OCC has done so to this point.”

The IBJ is a sister publication of Indiana Lawyer.

The city has not formally responded to IBJ’s July 22 request for the RFP document, other than to acknowledge the request. But in a Sept. 23 letter to Britt, the city’s public access counselor, Samantha DeWester, indicated the request would be denied.

DeWester cited an exemption to the state's Access to Public Records Act that allows an agency to withhold records that are in negotiation. Also, she said “the RFP contains sensitive information regarding the trade secrets of the entities involved, which is co-mingled throughout the document.”

Britt, an appointee of Gov. Mike Pence, wrote that he could not see how either exemption to public disclosure would apply to a request for proposals.

“RFPs are generally non-negotiated instruments. I’m not familiar with the City of Indianapolis’ procurement process; however, an RFP is usually inviting a bid for services or goods to meet a need. The RFP does not change, although the terms of the final contract may. I am not necessarily compelled by the argument an RFP itself is under negotiation.”

In his letter, Britt acknowledged that in a previous conversation with a city lawyer, he agreed that trade secrets might justify the secrecy. “Upon further reflection, it is difficult for me to be compelled by this argument as well,” he wrote in his letter.

“If an RFP sent out into the marketplace does indeed contain trade secrets, it stands to reason the secret is out once it goes out to potential contractors,” Britt wrote.

City officials hope to select a development team in October and receive approval from the City-County Council the following month to move forward on the project, which likely would cost more than $500 million. If all goes as planned, the center should open in mid-2018.

Mayor Greg Ballard’s office released the RFP in April to three qualified bidders. But when IBJ asked to see the document in July, spokesman Marc Lotter said in an email, “The RFP has not been released except to the potential bidders. It will be made public after the procurement.”

Ballard’s deputies hope to enter into an agreement in which the chosen bidder will finance and build the complex in return for set annual payments, referred to as “availability payments.” The term “availability payment” refers to the source of funding, which is money available under the current budget for courts and jails.

The amount of the availability payment won’t exceed the current budget, according to Director of Enterprise Development David Rosenberg, who is spearheading the justice complex project. But he has refused to disclose the figure.

The maximum availability payment was included in the RFP, Rosenberg said in a July interview.

“We need to keep the competitive tension between the bidders,” Rosenberg said at the time, explaining why the administration planned to keep the information secret. “If we were to put out a number, there would be others coming out of the woodwork saying they could do it for less, without knowing the full program and the numbers.”

Asked to respond to Britt’s letter, Lotter said Friday that the city always intended to release the RFP document when it’s finalized.

That, too, would be a departure from a typical, more transparent public procurement process. Government agencies commonly amend their RFPs in response to questions or suggestions from bidders, but usually those questions, answers and amendments are also made public.

Though the city isn’t responding to IBJ’s request, the city's Office of Corporation Counsel continues to communicate with Britt. In an email, Britt said he expects the OCC to send him a supplemental response to IBJ's complaint, based on his letter.

Britt did not issue a formal opinion on IBJ's complaint because the city has not yet supplied a legal response to the newspaper's initial request.

City officials say the project won’t require a tax hike, and the annual fee won’t be any greater than the $122.6 million a year the city now pays to operate courts and correctional facilities.

Whether that promise is realistic is impossible to gauge because the mayor’s deputies won’t reveal details of their analysis.

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