Request By:
Mr. Danny B. Gortney
Principal Assistant
Department of Administrative Services
Transportation Cabinet
Frankfort, Kentucky 40622
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. William Lewis Collins, an attorney in Whitesburg, Kentucky, has appealed to this Office pursuant to KRS 61.880 your denial of his May 27, 1991, request to inspect certain documents in the possession of the Transportation Cabinet. Those documents are identified as "items pertaining to the Transportation Cabinet's decision to acquire [the Jessie S. Collins property - Parcel Number 149W - Whitesburg Bypass]."
You denied Mr. Collins' request in a letter dated May 29, 1991. Relying on KRS 61.878(1)(d) and OAG 89-42, you advised:
A review of this project reveals that the above mentioned parcel has been assigned to one of the Cabinet's Attorney's [sic] for the preparation of the necessary information for filing condemnation action. Until this condemnation action is complete, we will be unable to furnish you the requested information.
You further indicated that the Cabinet would release any records from its files pertaining to the acquisition of the property "as long as . . . [the] request is in accordance with the Open Records Law."
In his letter of appeal to this office, Mr. Collins expresses his belief "that the Cabinet has misunderstood the nature of . . . [his] request, and mistakenly invoked the provision of KRS 61.878(1)(d)." Continuing, he observes:
My request seeks no 'real estate appraisals, engineering or feasibility estimates and evaluations.' . . . My request is aimed at the Cabinet's original decision to build the proposed road, and this information is not excluded under the Open Records Act.
Mr. Collins asks that we review the Cabinet's denial of his request to determine if this action was consistent with the Open Records Act. For the reasons outlined below, we conclude that although you improperly invoked KRS 61.878(1)(d) to authorize nondisclosure of the requested records, you properly withheld those documents which represent "preliminary drafts, notes, correspondence with private individuals" and "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, " pursuant to KRS 61.878(1)(g) and (h). Any document representing the Cabinet's final decision in this matter or any of these preliminary documents incorporated into its final decision, should, however, be made available for Mr. Collins' inspection.
OPINION OF THE ATTORNEY GENERAL
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 purpose of this 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." OAG 90-15, at p. 4. The exemption has been interpreted to mean 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 appraisals and engineering or feasibility estimates on the property should not be made available for inspection until such time as all of the parcels of land owned by various owners have been acquired. OAG 76-656; OAG 84-226; OAG 85-79; OAG 89-42; OAG 90-15; OAG 91-83.
Mr. Collins does not seek access to real estate appraisals and/or engineering or feasibility estimates on the subject property. Rather, he asks to inspect any documents pertaining to the Cabinet's initial decision to acquire the property. KRS 61.878(1)(d) therefore has no bearing on his request, and cannot be invoked as the basis for denial.
Nevertheless, the Cabinet properly denied Mr. Collins' request to the extent that the documents he seeks to inspect are preliminary in nature and are exempt from disclosure pursuant to KRS 61.878(1)(g) and (h). Those statutes provide for the withholding of:
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
As interpreted by this Office, such records are only subject to public inspection, in the absence of a court order, if they constitute notice of a final action of the public agency, or are incorporated into the public agency's final report or final decision on the matter.
In OAG 82-450, we were confronted with a similar issue. There, the requester sought access to the "Development Potential Analysis" prepared by the Real Estate Research Corporation for Jefferson County. Relying on KRS 61.878(1)(d), the county denied the request. This Office rejected the county's invocation of KRS 61.878(1)(d), observing:
It is contended . . . that the release of the document to the public would adversely affect the price which the county may obtain for the property. For that reason, [the county] relied on KRS 61.878(1)(d) which has to do with appraisals made when the county is purchasing property. Under the rules of statutory construction we believe that since exemption (d) expressly mentions appraisals and feasibility estimates and evaluations relative to the acquisition of property we could not hold the document exempt from public inspection under that provision.
OAG 82-450, at p. 2. Noting that in reviewing an open records appeal, this Office is not limited to only the exception which is cited by the agency in denying access to the record, but may consider all of the exceptions listed in KRS 61.878, we held that the requested record was exempt under KRS 61.878(1)(h). We believe that that opinion is controlling.
It is the opinion of this Office that release of any final documents pertaining to the Cabinet's original decision to build the proposed road will not permit an unfair negotiating advantage to landowners implicated by that decision. Such documents do not fall within the parameters of KRS 61.878(1)(d) and that provision is therefore inapposite. Any documents generated prior to the Cabinet's final decision to construct a road, and not incorporated into that final decision, may properly be withheld pursuant to KRS 61.878(10(g) and (h). The Cabinet must, however, release any document which can be said to constitute final agency action and any preliminary documents incorporated therein.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Williams L. Collins. Either Mr. Collins or the Cabinet may challenge it by instituting proceedings in the appropriate circuit court within thirty days pursuant to KRS 61.880(5) .