Request By:
Mr. Ralph Divine
Right of Way Supervisor
Department of Highways
District #5 Office
P.O. Box 37090
Louisville, Kentucky 40233
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. C. T. Walker has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. He describes the materials in question as right of way records pertaining to acquisition and relocation assistance payments and the summary of the basis therefore.
In your letter to Mr. Walker dated April 4, 1985 you stated that under the Open Records Law the contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for the acquisition of property are exempt until such time as all of the property has been acquired. The undersigned Assistant Attorney General talked with you by telephone on April 29, 1985 and you said that this matter involved a normal right of way project. Such a project generally takes 12 to 15 months to complete and this particular project involving the acquisition of about 120 parcels should be completed in September or October of 1985.
Mr. Walker relies on OAG 83-298 which would seem to support his position. However, this Office in 1976 issued OAG 76-656 which would seem to support your decision relative to the matter in question. Both opinions cite KRS 61.878(1)(d).
Opinion of the Attorney General
Among the public records excluded from the application of the Open Records Act and subject to inspection only upon the order of a court of competent jurisdiction are those described in KRS 61.878(1)(d) as follows:
"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; Provided, however, the law of eminent domain shall not be affected by this provision."
In OAG 76-656, copy enclosed, we dealt with the county's acquisition of land in connection with the planned dry bed reservoir that was to be part of the Bear Grass Creek Flood Control Project. The opinion quoted KRS 61.878(1)(d). It was noted that some of the land needed for the project had not yet been acquired and the county's position was that the appraisals on all of the property to be acquired for the project were exempt from inspection until all the property was acquired. We said at page two of that opinion as follows:
"It is the opinion of the Attorney General that the above stated position of the county is well taken. We believe that when the necessary acquisitions for a project are within a relatively compact area and the limits of the project are reasonably drawn, it is the legislative intent that the appraisals on the property are not to be made available for inspection until such time as all of the parcels of land owned by the various owners have been acquired."
In OAG 83-298, copy enclosed, this Office dealt with the records relative to five pieces of property purchased by the Transportation Cabinet for right of way acquisition and the relocation assistance payments to those property owners. All of the property involved in the right of way project had not yet been purchased. Although the opinion referred to KRS 61.878(1)(d), it emphasized the fact that the requested records related to property already purchased and not merely appraised, estimated or evaluated. "In the instant case, although all of the property for the right of way has not been acquired, the records requested are of property already purchased and not merely appraised, estimated or evaluated. Therefore this exemption does not apply."
The exemption to the provisions of the Open Records Law, set forth in KRS 61.878(1)(d), specifically states that contents of real estate appraisals, engineering or feasibility estimates and evaluations made relative to the acquisition of property are excluded from public inspection in the absence of an order of a court of competent jurisdiction until such time as all of the property has been acquired. The project with which this opinion is concerned involves the acquisition of land for a right of way. About one half of the necessary tracts have been acquired. The project is progressing at the normal rate and should be completed in September or October of this year.
It is, therefore, the opinion of the Attorney General that your denial of the request to inspect records relating to the acquisition of property for a right of way project, including the relocation assistance payments made relative thereto, was valid pursuant to KRS 61.878(1)(d) until such time as all of the property involved in the project has been acquired. To the extent that it conflicts with this opinion, OAG 83-298 is modified. The decision reached in OAG 76-656 is followed and affirmed by this opinion.
As required by statute a copy of this opinion is being sent to the requesting party who has the right to challenge it in circuit court pursuant to KRS 61.880(5).