Request By:
Mr. Laurence J. Zielke
450 South Third Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; V. Lynne Schroering, Assistant Attorney General
Mr. Michael L. Maple, attorney for Watterson Woods Sewage Disposal Company (Watterson), has appealed to the Attorney General pursuant to KRS 61.880 your denial of inspection of public records in your custody. Mr. Maple requests a copy of the Metropolitan Sewer District (MSD) Guidelines for acquiring sewer treatment plants.
On November 5, 1990, Watterson wrote to MSD and rejected the sewer district's purchase offer. In this letter, Watterson stated "In the offer you represent that the proposed price is 'based on MSD's guidelines'. If you desire to have any further discussion we would require a copy of 'MSD guidelines' for our review in as much as our attorney advises us that the guidelines would be available to us under the Open Records Law. " MSD did not resopnd to this letter.
Mr. Maple, Watterson's attorney, wrote to MSD on January 2, 1991, requesting a copy of the MSD Guidelines for determination of value of sewer treatment plants. On January 15, MSD denied this open records request citing KRS 61.878 without further explanation. Mr. Maple appealed this denial to the Office of the Attorney General on January 29, 1991.
On January 30, Metropolitan Sewer District wrote to the Attorney General and specifically spelled out why it denied the open records request. MSD relied on KRS 61.878(1)(d) which exempts evaluations relating to acquisitions of property and KRS 61.878(1)(h) which exempts preliminary memoranda in which opinions are expressed or policies formulated or recommended. On February 1, 1991, Mr. Maple wrote to the Attorney General stating that the January 2 request was a valid open records inquiry and that the open record exemptions cited by MSD do not apply in the instant case. On February 5, 1991, MSD wrote the Attorney General and submitted further legal arguments to support its records denial. Additionally, MSD enclosed an affidavit of its chief financial officer (CFO) who is responsible for conducting negotiations to acquire real property for sewer system services. The CFO stated that all negotiations with Watterson Woods were conducted in private, the Guidelines are internal criteria used to evaluate real property and outline negotiation procedures, the Guidelines are preliminary and are not final decisions, and the Guidelines have never been disclosed to any other individuals.
OPINION OF THE ATTORNEY GENERAL
While there may be debate regarding whether the November 5, 1990, letter from Watterson Woods Waste Management to MSD was an open records request, clearly the January 2 letter to MSD was a formal open records inquiry.
In its January 15, 1991, letter, MSD failed to explain its denial of Mr. Maple's open records request. KRS 61.880(1) provides in pertinent 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.
It was not until Mr. Maple appealed the denial to the Attorney General that MSD supplied a sufficient explanation of its open records denial. Additionally, a copy of the denial should have been promptly forwarded to the Office of the Attorney General. KRS 61.880(2). In the future, MSD should comply with the statutory requirements in responding to open records requests.
It is the opinion of the Attorney General that MSD acted in accordance with the Open Records Law in denying inspection of the Guidelines for acquisition of property. The portions of the statute correctly relied upon by MSD is KRS 61.878(1) which states as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
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(d) The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for 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.
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(h) Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Pursuant to KRS 61.878(2), the undersigned reviewed the MSD Guidelines. The MSD Guidelines are for the acquisition of small sewer systems within Jefferson County. The Guidelines contain negotiation strategy and formulas for appraising the value of the small sewer systems. MSD's Guidelines were apparently written to reflect a community plan to expand MSD's sewer system throughout Jefferson County.
MSD claims that its Guidelines are exempt from open records pursuant to KRS 61.878(1)(d) as it contains real estate appraisals, engineering or feasibility estimates and evaluations made for MSD relative to the acquisition of the small sewer systems. We agree and add that once the acquisition of all of the sewer systems is complete, then this information would cease to become exempt under the Open Records Law.
This situation is similar to the "right-of-way" opinions issued by this office in OAG 85-79 and OAG 89-42. In OAG 85-79, our office agreed that the recods pertaining to acquisition of right-of-ways and relocation assistance payments were exempt pursuant to KRS 61.878(1)(d) until all of the necessary land was purchased. In OAG 89-42, we agreed with the agency that records pertaining to a Nicholasville bypass project were exempt from open records pursuant to KRS 61.878(1)(d) until as all of the property involved was acquired.
MSD is a public agency seeking to purchase all small sewer systems in Jefferson County. This is its stated plan. It is unfair to allow the "seller" small sewer systems to examine the negotiation strategy and real estate evaluations prepared by the "buyer" MSD. The public should not be penalized in negotiations with a private party by virtue of the open records statute.
MSD also contends that the Guidelines should be exempt pursuant to KRS 61.878(1)(h) relating to preliminary memoranda in which opinions are expressed or policies formulated or recommended. We agree that the MSD Guidelines for the purchase of the small sewer systems is a preliminary memoranda reflecting opinions and policies. However, as with exemption KRS 61.878(1)(d), once all of the sewer systems have been purchased, the Guidelines would no longer be preliminary and would be considered final agency action.
Pursuant to KRS 61.880(2), a copy of this opinion will be given to the requesting party, Mr. Michael L. Maple. Both you and Mr. Maple have the right to challenge this opinion in circuit court pursuant to KRS 61.880(5).