Request By:
Mr. Roger Cole
Official Custodian of Records
Kentucky Transportation Cabinet
State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Conley C. Congleton, Assistant Attorney General
Mr. D. Brent Irvin has appealed to this office your February 7, 1989, denial of his January 30, 1989, request to inspect and copy records pertaining to a By-Pass project at Nicholasville, Kentucky, Project No. SSP057027B000-006 003 R, concerning acquisition of Parcel No. 147 (not in litigation) from Jessamine Creek Farm Company, Inc.
MATERIAL FACTS
By request dated January 30, 1989, Mr. D. Brent Irvin, Esquire, asked to inspect certain records pertaining to acquisition of Parcel No. 147 from Jessamine Creek Farm Company, Inc., in connection with a By-Pass project at Nicholasville, in Jessamine County.
In particular, the request sought inspection and copying of ". . . the State's appraisals, the landowners' appraisals, correspondence, memorandums, maps, and other records pertaining to the acquisition by negotiation of that parcel. " [Parcel No. 147.]
By letter of February 7, 1989, you denied Mr. Irvin's request to inspect the records in question, stating:
Since there are (9) nine parcels of Property in conjunction with this project which have not been acquired and have suits pending we are denying your request under KRS 61.878(1)(d).
Mr. Irvin's February 22, 1989, letter of appeal states in part that ". . . the Nicholasville By-Pass has been completed, and the Transportation Cabinet has taken both title and possession of all of these tracts involved in the project. . . ." He further stated:
. . . the Cabinet is apparently proceeding on a definition of the word "acquired" as meaning possession of the land, title to the property and the final resolution of each of the lawsuits which will determine compensation due all the landowners.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1) states:
The following public records are exempt from the application of this act and shall be subject to inspection only upon order of court of competent jurisdiction:
. . .
(d) 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 Mr. Irvin's January 30, 1989, letter to you, he stated: "It is our position that since this property has been purchased these records are open to public inspection, and we enclose a photocopy of Attorney General's Opinion No. 83-298 which we would cite in support of our position." In OAG 83-298, it was stated, in part, that:
KRS 61.878(1)(d) is also not applicable herein since this section exempts real estate appraisals, estimates, and evaluations relative to the acquisition of property by a public agency until all of the property is acquired. 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.
In your letter of denial dated February 7, 1989, you cited OAG 85-79 in support of your position. You were correct in relying on OAG 85-79. It states, in part:
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 . . . 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.
In the instant case, we are concerned with the acquisition of a number of parcels of land involved in a project. Parcel No. 147 was acquired through negotiation and purchase. Nine other parcels are being acquired through condemnation proceedings. Those parcels are currently in litigation which will require that juries decide the fair market value of each of those parcels. The fair market values thus determined will become the consideration to be paid for the parcels, and, thereafter, deeds of conveyance will be delivered.
Mr. Irvin argues, in his February 22, 1989, letter of appeal to this office, that:
KRS 61.878(1)(d), which excludes from public inspection certain records, " until such time as all of the property has been acquired, " should be construed strictly; it was not intended to block public inspections of records after the Commonwealth gains title and possession of all of the land in a public project, even though the amount of compensation due all the landowners may not yet be conclusively litigated.
In OAG 84-90, it was stated that "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." That opinion dealt with KRS 61.878(1)(d). Here we are certainly dealing with "finalization of terms" with regard to "the acquisition of property, " inasmuch as the consideration to be ultimately paid has yet to be determined.
It is the opinion of the Attorney General that the records exempted from public inspection by KRS 61.878(1)(d) are so exempted until ". . . all of the property has been acquired . . ." through completed condemnation proceedings or completed negotiations and purchase, with final consideration having been determined and deeds of conveyance having been delivered. Such records are of course subject to inspection upon order of a court of competent jurisdiction.
Your denial of Mr. Irvin's request was correct and in compliance with the applicable language and intent thereof contained in KRS 61.878(1)(d).
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).