Request By:
Mr. Roger Cole
Commissioner
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. David L. Baker, a reporter for The State Journal , has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his April 25, 1991, request to inspect certain documents in the possession of the Transportation Cabinet. Those documents are identifed as:
- Relocation agreements and all associated documentation. This includes all costs of relocation.
- State appraisals and review appraisals.
- Total acquisition costs of the Tincher property.
- Sales price of the Tincher home for salvage, including any agreements with purchaser of the house.
- Sites considered for relocation of the Tincher family, and documentation of costs involved.
- Costs of construction of a driveway to the relocated Tincher homestead.
- Any documentation of any agreements or communication between the state Transportation Cabinet or private contractor with David or Judy Tincher prior to the public announcement of the new U.S. 127 road.
Although you permitted inspection of most of the requested documents, you denied Mr. Baker access to state appraisals and review appraisals of property owned by the Tincher family, relying on KRS 61.878(1)(d) and OAG 89-42.
In your April 30, 1991, letter of denial, you indicated that the Tincher property is one of several parcels that the state is currently attempting to acquire for purposes of a road relocation project. Although negotiations on the Tincher property have been concluded, a number of parcels are currently in litigation. With respect to your denial of Mr. Baker's request, you observe:
KRS 61.878(1)(d) states that contents of real estate appraisals, engineering or feasibility estimates and evaluations made relative to the acquisition of property are excluded from public inspection in the absence of an order of a court of competent jurisdiction until such time as all the property has been acquired. Further, OAG 89-42 states '. . . 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.'
It is Mr. Baker's position that the reasoning of this opinion is flawed insofar as the term "acquire, " as it is used in the condemnation statutes, "means to take possession of property." He argues that "[O]nce an interlocutory order has been issued in condemnation proceedings, the state is allowed to take possession, or 'acquire' the desired property." In support of this position, he cites OAG 83-298, arguing that there is "no reason to keep secret appraisals of property already bought and deeded to the state." He asks that this Office review your 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 Mr. Baker's request pertaining to appraisals and review appraisals.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(d) exempts from mandatory disclosure:
[T]he 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.
This provision 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 the appraisals 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. We find these opinions to be dispositive of the present appeal.
Mr. Baker's arguments mirror those of the requesting party in OAG 89-42. He maintains that the Cabinet improperly defines the word "acquire" to mean not only possession of the land, but "title to the property and the final resolution of each of the lawsuits which will determine compensation due all the landowners. " OAG 89-42 at p.2. This argument was rejected in OAG 89-42, where we held that denial of a request to inspect records relating to the acquisition of property for a road construction project was proper under KRS 61.878(1)(d) until all of the property had been acquired through completed condemnation proceedings or completed negotiations and purchase, with final consideration having been determined and deeds of conveyance having been delivered. OAG 89-42 citing OAG 85-79 and OAG 84-90.
It would appear that the opinion cited by Mr. Baker in support of his position, OAG 83-298, is an aberration, and has been expressly modified by subsequent opinions. In OAG 85-79 at p. 3, we stated that denial of a request to inspect records relating to the acquisition of property was valid "until such time as all of the property involved in the project has been acquired," thereby affirming OAG 76-656 and modifying OAG 83-298. Subsequent opinions of this Office have relied on this reasoning, and we are not persuaded that we should depart from it today. OAG 90-15; OAG 91-31.
As we noted in OAG 89-42, at p.4:
[W]e are concerned with the acquisition of a number of parcels of land involved in a project. [One of the parcels] was acquired through negotiation and purchase . . . [O]ther 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.
We reject Mr. Baker's argument that the term "acquire" should be strictly construed to permit release of the requested documents after the Commonwealth gains possession of all of the land in the project, since the consideration due the landowners has not been conclusively litigated and the deeds of conveyance delivered. We therefore conclude that the requested records may properly be withheld until all of the property has been acquired through completed negotiations and purchase or completed condemnation proceedings.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. David Baker, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).