Request By:
Mr. Danny B. Gortney
Principal Assistant
Department of Administrative Services
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Amye B. Majors, Assistant Attorney General
Mr. H. Jefferson Herbert, Jr., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his July 22, 1991, request for a copy of "the complete file of the Department of Transportation relating to its acquisition of a right of way from John White and wife, Lula Mae White, for the Bowling Green Bypass in Bowling Green, Kentucky (Item No. 3-970.0)."
You denied that portion of Mr. Herbert's request pertaining to the real estate appraisal of the parcel in a letter dated July 29, 1991. Relying on KRS 61.878(1)(d), you observed:
A review of this particular project has revealed that several of the properties involved have yet to be finalized. Until all of the properties involved have been finalized, we will provide you with the cost breakdown and pay statement, record of negotiations and memorandum of understanding which involved the acquisition of the subject property. Until all condemnation actions have been completed, we are not providing a copy of the appraisal.
In his letter of appeal to this Office, Mr. Herbert takes issue with the Transportation Cabinet's interpretation of KRS 61.878(1)(d). He asserts:
Apparently the Transportation Cabinet is taking the position that, even though the acquisition of the White property is complete and has been finalized, the appraisal and other documents relating to that acquisition are protected by KRS 61.878 because the acquisition of other parcels from other property owners on the same road project has not been completed. Quite clearly, that is an erroneous interpretation of KRS 61.878. There is absolutely no reason to protect the appraisal of the White property simply because all of the condemnation actions relating to all of the parcels of property on this highway project - which is several miles in length - have not been completed.
Mr. Herbert asks that we review the Cabinet's partial denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied that portion of his request pertaining to the real estate appraisal of the subject property.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records 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.
Your response to Mr. Herbert's request was technically deficient under the Open Records Act, to the extent that you did not reply in writing within three working days. Some five work days elapsed between the date of the request and the date of the written response. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
We must also note, however, that Mr. Herbert's request was improper under the Act insofar as he did not ask to inspect the records pertaining to the acquisition of the parcel, but instead asked for copies of the records. While it is frequently more expedient for an agency to provide copies of requested documents, it is under no obligation to do so until the documents have been inspected. KRS 61.874. This Office has consistently held that the right to obtain copies is ancillary to the right of inspection and does not stand by itself. OAG 76-375; OAG 82-629; OAG 83-42; OAG 83-240; OAG 86-24; OAG 88-60; OAG 89-53; OAG 90-31.
Turning to the issue in this appeal, we direct your attention to KRS 61.878(1)(d), which 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; 91-117. Accordingly, we find that the Cabinet properly denied inspection of the appraisal of the parcel of land owned by John and Lula Mae White.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. H. Jefferson Herbert, Jr. Mr. Herbert may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).