Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this open records appeal is whether the Simpson County Schools properly relied on KRS 61.878(1)(f) and (i) in denying Franklin Favorite-WFKN Publisher and General Manager Henry D. Stone's request for records pertaining to the school system's acquisition of land on U.S. Hwy 31-W South for the construction of a community center with collaborative funding from the city, county, and school system. Specifically, Mr. Stone requested access to "records showing the price being paid for the property being purchased, the related sales expenses including real estate commissions, the exact location of the land, the seller of the property, and the number of acres. "
On behalf of the Simpson County School, Board attorney Janet Jobe Crocker denied Mr. Stone's request. Relying on KRS 61.878(1)(i), she explained that the Board of Education "has entered into a preliminary real estate purchase contract subject to the contingency of financing through the sale of bond[s] [which the Board] construes . . . to be in the nature of a preliminary draft, and thus, exempted from public inspection. " (Emphasis in original.) In addition, Ms. Crocker argued that the requested records are excluded from public inspection by KRS 61.878(1)(f). It was her position that KRS 61.878(1)(f) authorizes nondisclosure "of information relative to the acquisition of real property by a public agency 'until such time as all of the property has been acquired.'" Ms. Crocker maintained that the property had not been acquired as of the date of her response, and that the property could not be acquired "until after the bonds are sold." She noted that "this exemption has been consistently construed to serve the public interest by insuring that a public agency will not be unfairly disadvantaged in negotiations for the acquisition of real property through premature disclosure of the terms and conditions of specific offers."
We find that the Simpson County Schools improperly relied on KRS 61.878(1)(f) and (i) in denying Mr. Stone's request. Based on a strict construction of the cited exceptions, as applied to the records requested, we conclude that the school system's invocation of these exceptions is not supported by their ordinary and plain meaning.
We begin by noting that the General Assembly has determined "that free and open examination of public records is in the public interest and 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 61.871 (emphasis added). In construing this provision, the Kentucky Supreme Court has declared that "the unambiguous purpose of the Open Records Act is the disclosure of public records . . . [and] an extensive mechanism has been created for the exercise of the right of inspection. . . ." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) cited in Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 470 (1997). The Court has further noted that in analyzing the Act "we are guided by the principle that 'under general rules of statutory construction, we may not interpret a statute at variance with its stated language.'" Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995) citing Layne v. Newberg, Ky., 841 S.W.2d 181, 183 (1993). Nevertheless, "from the exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality." Beckham at 578. With these principles in mind, we turn to the exceptions relied upon by the Simpson County Schools to support its denial of Mr. Stone's request.
KRS 61.878(1)(i) excludes from the mandatory disclosure provisions of the Open Records Act "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " Ms. Crocker maintains that the real estate purchase contract is "in the nature of a preliminary draft" because it is contingent on the sale of bonds to finance the project. We are not persuaded that the presence of a contingency clause in a properly executed real estate purchase contract makes that contract a preliminary draft within the meaning of KRS 61.878 (1)(i). In an early open records opinion, this office suggested the scope of the terms "preliminary drafts [and] notes" when we observed:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)[(i)]. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
OAG 78-626, p. 2. Recently, we noted that the dictionary defines the term "draft" as "a preliminary outline, plan, or version," and concluded that a database of lost and abandoned property was not "a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, or 94-ORD-38." 97-ORD-183, p. 4.
We believe that a properly executed real estate purchase contract is more closely akin to the final document at issue in 97-ORD-183 than the draft documents at issue in OAG 78-626, despite the presence of the contingency clause. Although the terms of the contract may not be carried out if the school system fails to obtain financing through the sale of bonds, the contract cannot be characterized as work paper or doodling which may be "unceremoniously thrown in the wastebasket. " It memorializes the parties' agreement relative to the acquisition of the property, and their mutual legal obligations. In light of the rule of construction that the exceptions are to be strictly construed and thus given no broader application than is necessary to effectuate their purposes, we find that the Simpson County School's reliance on KRS 61.878(1)(i) to withhold the real estate purchase contract was misplaced.
As a second line of defense, the school system argues that records showing the price being paid for the property, related sales expenses, the location of the land, the seller of the property, and the number of acres is excluded from public inspection by KRS 61.878(1)(f) until the property has been acquired. Ms. Crocker asserts that this exception is intended to protect the public agency from being unfairly disadvantaged in negotiations for the acquisition of real property "through premature disclosure of the terms and conditions of specific offers." Inasmuch as the Simpson County School's offer has been accepted, negotiations concluded, and the purchase contract executed (subject to the financing contingency) , we fail to see how the school system will be unfairly disadvantaged by disclosure of the terms and conditions of the purchase agreement at this time. Success in the acquisition of the property turns on the school system's ability to secure financing through the sale of bonds, not on its ability to negotiate acceptable terms and conditions.
Moreover, Mr. Stone did not request "the contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for [the school system] relative to acquisition of the property." KRS 61.878(1)(f). Instead, he requested records reflecting the price paid for the property, related sales expenses, the location of the land, the seller of the property, and the number of acres. Applying the rule of strict construction of the exceptions codified at KRS 61.871, we find that the Simpson County School's reliance on this provision was also misplaced. The exception does not, by its express terms, permit nondisclosure of the price paid, sales expenses, location, number of acres, and the seller of the land. We therefore conclude that the school system broadly construed the exception in a manner which is inconsistent with both the spirit and the letter of the law. See, 92-ORD-1374 (holding that KRS 61.878(1)(f), then codified as KRS 61.878(1)(e), does not expressly authorize the nondisclosure of a settlement agreement reached by the parties in a condemnation action); 95-ORD-98 (holding that KRS 61.878(1)(f) does not authorize nondisclosure of records relating to the purchase or acquisition of personal property); 94-ORD-85 (holding that KRS 61.878(1)(f) does not apply to a real estate appraisal made by or for a public agency relative to the sale of property).
Because we find that neither of the cited exceptions supports the school system's denial of this request, we direct the Simpson County Schools to make immediate arrangements for Mr. Stone, or a representative of the Franklin Favorite-WFKN, to inspect and copy records containing the information he seeks.
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.