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 appeal is whether the Transportation Cabinet properly relied on KRS 61.878(1)(f) in denying John T. Mandt's September 17, 1998, request to inspect:
Any and all agreements with the owners, or lessees, of the Lois Claunch Property, being Parcel No. 124, located on the west side of U.S. 27 south between Oak Hill Road and Lakeview Restaurant on U.S. 27 south of Somerset, Kentucky, where U.S. 27 is being widened from four (4) lanes to six (6) lanes.
For the reasons that follow, we find that the Cabinet improperly denied Mr. Mandt's request.
In a response dated September 18, Commissioner Ed Roberts, Department of Administrative Services, advised Mr. Mandt that the District Eight Office was in the process of searching its files for the records identified in his request, and that he could expect a response by Friday, October 2. Commissioner Roberts noted that the Cabinet would, at that time, disclose "anything not protected under the Open Records Law." On September 28, Commissioner Roberts notified Mr. Mandt that his request was denied. Relying on KRS 61.878(1)(f), he explained that the project is still active. In support, he cited OAG 85-79, OAG 89-42, and OAG 76-656. This appeal followed.
In a letter to this office, Assistant General Counsel J. Todd Shipp elaborated on the Cabinet's position. Mr. Shipp argued:
The very essence of any correspondence that this Cabinet has had with the referenced parties is concerning the purchase for a project on that site. There are no other documents or agreements that do not relate to the acquisition of that property for a right of way project. Therefore, Mr. Mandt may wish to define what this Cabinet's records contain, but his request is clearly an effort to obtain information concerning the purchase of property for a road project. It is one and the same.
Citing the opinions which Commissioner Roberts cited in his original denial, Mr. Shipp reiterated that because the acquisition of property for the project has not been concluded, KRS 61.878(1)(f) authorizes nondisclosure of the records identified in Mr. Mandt's request.
We find that the Cabinet's position is inconsistent with the express language of KRS 61.878(1)(f) and the weight of legal authority construing it, and that the cited opinions are not controlling. Accordingly, the Cabinet must disclose all records in its custody that are responsive to Mr. Mandt's request without further delay, or, alternatively, advise Mr. Mandt that there are no records responsive to his request if this is, in fact, the case.
KRS 61.878(1)(f) authorizes the nondisclosure of:
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.
In construing this provision, the Attorney General has observed:
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, engineering or feasibility estimates, and evaluations 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.
92-ORD-1374, p. 2, 3 (emphasis added); see also, OAG 76-656; OAG 84-226; OAG 85-79; OAG 89-42; OAG 90-15. This position echoes the view expressed in OAG 89-42 in which the Attorney General held:
The records exempted from public inspection by KRS 61.878(1)[(f)] 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.
OAG 89-42, p. 4, (emphasis added). Nevertheless, in 92-ORD-1374, and subsequent decisions, the Attorney General recognized the limited scope of this exception. At page 3 of 92-ORD-1374, we commented:
The General Assembly has recognized "that free and open examination of public records is in the public interest." [KRS 61.871.] 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)(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.
See also, 97-ORD-191 (holding that KRS 61.878(1)(f) does not, by its express terms, permit nondisclosure of the price paid, sales expenses, location, number of acres, and the seller of the land); 96-ORD-30 (holding that KRS 61.878(1)(f) does not authorize the Cabinet to withhold unaccepted offers to purchase, counter offers, accepted offers to purchase, memoranda of agreement, memoranda of understanding, maps, drawings, and text which describe what was purchased and what each individual purchase cost); 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); compare 97-ORD-171 (holding that Cabinet properly withheld real estate appraisals on property where all necessary parcels had not been acquired).
Here, as in 92-ORD-1374, the requester does not seek access to real estate appraisals, engineering and feasibility estimates, and evaluations made by or for the Cabinet relative to the acquisition of the Claunch property. Instead, he requests all agreements with the owners or lessees of the property. In view of the mandate of KRS 61.871, and the rule of strict construction which it codifies, as well as the express terms of KRS 61.878(1)(f), we conclude that the Transportation Cabinet's reliance on KRS 61.878(1)(f) was misplaced. The Cabinet is directed to immediately release any records which are responsive to Mr. Mandt's request to him. If, on the other hand, no such records exist, the Cabinet must affirmatively so state. OAG 90-26, p. 4 (holding that "if a record of which inspection is sought does not exist, the agency should specifically so indicate").
We are also troubled by the manner in which Mr. Mandt's request was handled. In postponing its final response to his request, the Cabinet relied on KRS 61.872(5) which provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
It is the Cabinet's position that it complied with this statute by advising Mr. Mandt that the delay was occasioned by the need to locate the records he requested, and notifying him that a response would be issued by October 2. While we are aware that the Cabinet's offices are located across the state, and that delays may occur as a result of the dispersal of its records, it appears to this office that such delays have become the rule rather than the exception. Our review of the decisions cited above suggest that this has become the Cabinet's standard response to open records requests. Given the efficiency and immediacy in communication which the age of automation has facilitated, we see no reason why the Cabinet should not, as a general rule, respond to records requests within three business days as other agencies do by releasing records or denying access to records on the basis of one or more of the exceptions codified at KRS 61.878(1)(a) and (l). Certainly, a final decision within the three day period of limitation which KRS 61.880(1) contemplates will serve to eliminate the kind of confusion which the Cabinet's ostensibly inconsistent September 18 and September 28 responses created in the appeal before us. We urge the Cabinet to bear these observations in mind in responding to future open records requests.
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.