Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney
Open Records Decision
The question presented in this open records appeal is whether the Transportation Cabinet properly relied on KRS 61.878(1)(f) in denying Ray D. Sexton's request for copies of two real estate appraisals completed by independent evaluators on property Mr. Sexton owns in Pippa Passes, Kentucky. Mr. Sexton's property is apparently one of several parcels that the state is currently attempting to acquire for purposes of a road improvement project identified as "Improve Crest of Mountain Crossing 1.5 NE of Mallie, Kentucky." For the reasons which follow, we conclude that the Cabinet properly denied Mr. Sexton's request.
In a follow-up letter to this office, Assistant General Counsel William M. Sawyer explained that the appraisals which Mr. Sexton requested relate to a highway project "where all of the necessary right-of-way has not yet been acquired." It is the Cabinet's position that "KRS 621.878(1)(f) prohibits the disclosure of this information until all such property is acquired by the Transportation Cabinet." This position finds support in OAG 91-159. We therefore affirm the Cabinet's denial of Mr. Sexton's request.
KRS 61.878(1)(f) excludes 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 law of eminent domain shall not be affected by this provision.
In construing this provision, the Attorney General has observed:
"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.
Compare 95-ORD-98 (KRS 61.878(1)(f) does not authorize nondisclosure of records relating to the acquisition of personal, as opposed to real, property); 94-ORD-85 (KRS 61.878(1)(f) does not authorize nondisclosure of records relating to the disposition, as opposed to acquisition, of real property) ; 92-ORD-1374 (KRS 61.878(1)(f) does not authorize the nondisclosure of a settlement agreement between the Cabinet and a property owner relative to the acquisition of real property) ; OAG 91-117 (KRS 61.878(1)(f) does not authorize the nondisclosure of records pertaining to the Cabinet's initial decision to acquire real property) .
Because the Transportation Cabinet has not yet acquired all of the parcels of land for the road improvement project involving Mr. Sexton's property, the appraisals on that property may properly be withheld. While we understand Mr. Sexton's frustration that he cannot inspect records "which have been paid for by the taxpayers" and which directly affect him, we remind him that:
with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality. A cursory examination of KRS 61.878 revels an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). These records will become available when 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.
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.