Request By:
Frank X. Quickert, Jr., Esq.
Director of Law
City of Louisville
Department of Law, Room 200
City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Frederic J. Cowan, Attorney General; David H. Ashley, Assistant Attorney General
By letter of May 16, 1989, Kimberly K. Greene has appealed to this office regarding your May 12, 1989, response to the request of Rick McDonough of the Louisville Courier-Journal requesting inspection of certain of the city's records.
FINDINGS IN BRIEF
The city acted inconsistently with the Open Records provisions, although promptly responding to the request, but failing to explain justification for the exemptions provided by 61.878(1)(a), (d), and (g) denying the request. The request was for access to documents containing the names of all property owners who have received offers for their property from the City of Louisville and Jefferson County in connection with the airport expansion project. The exemptions cited by the city, i.e. information of a personal nature, contents of real estate appraisals or preliminary drafts, notes or correspondence with private individuals, are not applicable.
FACTUAL BACKGROUND
By letter dated May 9, 1989, Mr. Rick McDonough requested of Mr. Quickert as follows:
"Pursuant to the state open-records law, I am requesting the names of all property owners in the Highland Park, Prestonia, and Standiford who have received offers to purchase their property from the city and county. I understand that the first offers will be made tomorrow, and I am requesting that the names be made available as soon as possible after the offers are made."
By letter dated May 12, 1989, Mr. Quickert responded to Mr. McDonough's request as follows:
"Under the authority of KRS 61.878(1)(a)(d) and (g), we must deny your request at this time."
There is no further justification of the city's position in Mr. Quickert's letter of May 12, 1989.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides, in part, for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency has ". . . acted consistent with the provisions of KRS 61.870 to 61.884".
KRS 61.880(1) provides, in part:
"An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."
Mr. Quickert's letter of May 12, 1989, although setting forth the specific exemptions to the Open Records Act by reference to KRS 61.878(1)(a), (d) and (g) does not set forth the exemptions in detail and does not explain why these exemptions justify denial of the request. See OAG 86-36 and OAG 85-43. This office has consistently held that in denying inspection of a particular record the agency shall advise the requesting party of the particular exception to public inspection it is relying upon and how it applies to the specific document and information being withheld.
In addition to the foregoing, we do not believe that the exemptions cited by Mr. Quickert are applicable to the instant request. KRS 61.878(1)(a) exempts from public inspection those records which contain "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy". The request submitted to the City of Louisville is simply for a list of the names of those persons in the area to be affected by the Standiford Field Expansion who have received offers to purchase from the City of Louisville. There is no request for information which would reveal the amount of the offer, or any other terms and conditions of a specific offer.
KRS 61.878(1)(d) permits a public agency to withhold the following records from public inspection:
(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."
At the point in time when the request was received, there was no indication that the City of Louisville would acquire any of the affected property by eminent domain. The request was simply for a list of names of those persons to whom the city had made an offer to purchase. Again, the request was only for a list of names. There was no request for any of the terms of the offer, including the amount. The purpose of the exemption is to allow a governmental agency to negotiate with individual landowners, in the acquisition of large tracts of land, without having others similarly situated knowing the terms and conditions of any specific offer, and thereby gaining an unfair negotiating advantage.
The last exemption cited by Mr. Quickert in his May 12, 1989, letter is under KRS 61.878(1)(g), which in part provides, that a public agency may withhold from public inspection ". . . preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency . . .". We do not believe this exemption is applicable. The information requested is simply a list of names. Ultimately, all persons in the area affected by the Standiford Field expansion will receive some sort of offer to purchase from the city or county. The information requested does not constitute a "preliminary draft", "note", or "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. "
Based upon the foregoing, it is the opinion of this office that the City of Louisville acted inconsistently with the provisions of KRS 61.870 to 61.884 in its May 12, 1989, response to Mr. McDonough request.
Ms. Greene may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Ms. Kimberly K. Greene, as attorney for the requester.