Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Transportation Cabinet's denial of an open records request by Mr. James M. Ellis to inspect Cabinet documents relating to certain parcels of land in Shelby County, Kentucky.
In his open records request, Mr. Ellis asked for copies of the following documents:
Therefore, under the Open Records laws, KRS 61.870 through 61.884, please provide me with copies of those documents in possession of the Department of Transportation which are open to the public under these statutes and which deal with the Commonwealth of Kentucky acquiring the parcels 33, 33-A, and 33-B (Shelby County Clerk's office Deed Book 0309, page 677), parcels 24, 24A, 24B, 24C, and 24D (Shelby Co, Deed Book 0311, page 312), and parcels 84 and 84-A (Shelby Co. Deed Book 0310, page 434) for FSP 106 055. Copies of the first pages of these deeds of conveyance are attached. This request includes, but is not limited to, unaccepted offers to purchase from the Transportation Cabinet, counter offers or responses to offers to purchase, accepted offers to purchase, memorandums of agreements, maps, drawings, and text which describe what was purchased and what each individual purchase cost.
By letter dated August 9, 1995, Mr. Jon D. Clark, Commissioner, Department of Administrative Services and Custodian of Records, responded on behalf of the Cabinet, stating:
Please be advised that your information request was forwarded to the Division of Right of Way for research. We expect to receive a response by Friday, August 18, 1995. At that time, anything not protected under the Open Records Law will be made available to you.
By letter dated August 14, 1995, Mr. Clark sent Mr. Ellis a follow-up response, stating:
Please be advise that we will be unable to provide the requested information at this time. According to the Division of Right of Way, this is still an active project. Therefore, based on KRS 61.878(1)(f) of the Open Records Law, "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", is exempt from public inspection. [Emphasis in original.]
In his letter of appeal, Mr. Ellis states that the Cabinet's denial appears to be in violation of KRS 61.878(1)(f), as that section allows only specific records to be exempted from public inspection while properties are being acquired. He asks this office for a decision as to whether the Cabinet's response was consistent with the Open Records Act. For the reasons which follow, it is the conclusion of this office that the Cabinet's response was procedurally deficient because it failed to briefly explain how KRS 61.878(1)(f) applied to the documents described in the request, as required by KRS 61.880(1).
Thus, its response was in violation of the Open Records Act.
KRS 61.878(1)(f) of the Open Records Law 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.
In his request and letter of appeal, Mr. Ellis acknowledges that the real estate appraisals, engineering and feasibility estimates and evaluations involved in his request are exempt from inspection. Instead, he asks for "those documents in possession of the Department of Transportation which are open to the public" under the Open Records Act, relating to certain parcels of property involved in the Cabinet's relocation project of KY 55, which would not be exempt under KRS 61.878(1)(f).
This office has previously held that an agency does not have to honor blanket requests for all nonexempt records in a file if the requester has not described or identified the specific documents he wishes to inspect. OAG 92-56. In the request, Mr. Ellis describes the documents he seeks to include, but not limited to:
unaccepted offers to purchase from the Transportation Cabinet, counter offers or responses to offers to purchase, accepted offers to purchase, memorandums of agreements, maps, drawings, and text which describe what was purchased and what each individual purchase cost.
In 94-ORD-12, the Attorney General articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
Although Mr. Ellis's request was not a model of precision, we do not believe that it was so ambiguous that it precluded the custodian from determining the identity of the records sought and providing a brief explanation as to how KRS 61.878(1)(f) applied to the records described in his request.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of KRS 61.880 requires that if the public agency denies all or any portion of the request, the written response must include a statement of the specific exception authorizing the withholding and a brief explanation of how the exception applies to the records withheld. Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
The Department's response was procedurally deficient in that it did not explain how the cited exception applied to the described documents.
Moreover, in 92-ORD-1374, this office determined that the Cabinet improperly relied on KRS 61.878(1)(e), now codified as KRS 61.878(1)(f), in denying an open records request to inspect the Cabinet's settlement agreement with a property owner in a condemnation case. In that decision, this office stated:
At KRS 61.871 the General Assembly has recognized "that free and open examination of public records is in the public interest." Thus, "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.878(1)(e) (now codified as KRS 61.878(1) (f)) authorizes the nondisclosure of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to the acquisition of property. This exception does not expressly permit an agency to withhold a settlement agreement reached by the parties in a condemnation action.
Thus, following the direction of 92-ORD-1374 that the exemptions in KRS 61.878(1) must be strictly construed, the Cabinet cannot withhold disclosure of the documents requested by Mr. Ellis under authority of KRS 61.878(1)(f) unless the documents requested by Mr. Ellis constitute or are an integral part of "real estate appraisals, engineering or feasibility estimates and evaluations."
The Department in its response did not explain that the documents requested by Mr. Ellis fell within this class of documents. Thus, the documents were improperly withheld from disclosure under authority of KRS 61.878(1)(f). 92-ORD-1374.
This is not to say the Cabinet could not properly withhold the requested documents upon sufficient proof that the documents fell under one of the exceptions codified at KRS 61.878(1). Our decision is limited to the facts presented in this appeal and turns on the Cabinet's failure to sustain its burden of proof to justify the withholding of public records. Accordingly, due to the Cabinet's failure to meet this burden, we are left with no alternative but to direct the release of the requested records to Mr. Ellis.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.