Request By:
Mr. Lester M. Thompson
Secretary
Finance and Administration Cabinet
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Tom Loftus, a reporter for The Kentucky Post, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody as Secretary of Finance and Administration. Specifically, Mr. Loftus requested to inspect File No. PR-2982 within the Division of Real Properties regarding a lease. If the lease in File No. PR-2982 had not been awarded, Mr. Loftus requested to inspect the bid advertisement and the request for new space by the Department of Insurance, as well as "any and all records" relating to the proposed lease.
In your timely response, you denied Mr. Loftus' request based on KRS 61.878(1)(d). Specifically, you stated that the requested records are exempt from public inspection until the property rights have been acquired by purchase or lease. You also indicated that the requested records refer to a "proposed lease" in which the selection process is not complete nor the necessary documentation prepared or executed.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper under the Open Records law, with the following qualifications.
If, as you indicate, no selection has been made or lease executed, then KRS 61.878(1)(d) exempts from public disclosure:
The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition of property, until such time as all of the property has been acquired;
The acquisition of a lease herein is analogous to the acquisition of property with the same inherent concerns of the effect of public disclosure on negotiation, selection, and finalization of terms. Therefore, Mr. Loftus' request to see "any and all records" relating to the proposed lease was properly denied insofar as they consisted of evaluations made by or for the agency relative to acquisition. KRS 61.878(1)(g) and (h) also exempts "preliminary drafts, notes, correspondence with private individuals" and "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
Mr. Loftus also requested to inspect the bid advertisement and the request for more space by the Department of Insurance. If these documents exist and are in your possession, we see no reason why Mr. Loftus should not be allowed to inspect them. The bid advertisement is a public document issued to receive bids, and the request by the Insurance Department is evidence of final agency action. Neither fit under the KRS 61.878 exemptions.
It is therefore our opinion that records in the file on the proposed lease are not open for public inspection if they fall within the exemptions of KRS 61.878(1)(d) [evaluations made by or for a public agency relative to acquisition of property] or KRS 61.878(1)(g) and (h) [preliminary memoranda]. The bid advertisements and Department of Insurance request are open to inspection. If the file contains exempted and non-exempted material, the non-exempted material must be separated out and made available for public inspection. KRS 61.878(3).
As directed by statute, a copy of this opinion is being sent to the requestor.