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) and (j) in denying Louise Taylor's October 6, 1999, request for copies of records pertaining to the proposed eastern bypass around Nicholasville, Kentucky. For the reasons that follow, we find that the Cabinet's reliance on the cited exceptions was misplaced, and that it is obligated to provide Ms. Taylor with all existing records that are responsive to her request.
Ms. Taylor requested access to, and copies of:
1. All public comments submitted to District Seven Chief Engineer Clifford Linkes or to other officials regarding the proposed Eastern Bypass around Nicholasville in Jessamine County, Kentucky;
2. (T)he map of the proposed road that shows the bypass's project path as well as the names of property owners who would be affected by this project.
In a response dated October 7, 1999, Commissioner Ed Roberts, custodian of records for the Cabinet, advised Ms. Taylor that the records identified in her request were "in active use, in storage or not otherwise available as they are located at the Cabinet's District Office." Commissioner Roberts indicated that the Cabinet would "make these records available" to Ms. Taylor no later than Friday, October 22, but advised her that this would "not include records exempt from disclosure pursuant to KRS 61."
On October 21, Commissioner Roberts again wrote Ms. Taylor to notify her that the only record that would be released was "the handout that was provided at the Public Meeting on the proposed Eastern Bypass Project in Nicholasville." With respect to the record she had requested, he explained:
Your request for public comments, and a copy of the map of the proposed road that shows the bypass's project path as well as the names of property owners who would be affected by this project has been denied according to the following KRS law concerning the Open Record Act:
*KRS 61.878(1)(f): 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;
*KRS 61.878(1)(j): Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This appeal followed.
In her October 26 letter of appeal, Ms. Taylor complained that the disputed map "was on public display at a public meeting held September 9, 1999, in Jessamine County, [and that it] showed the bypass's projected path overlaid on a map that displayed the names of property owners who potentially could be affected by this project." It was her position that disclosure of the previously publicized map:
Cannot in any way jeopardize real estate appraisal or engineering studies or prompt a speculative land grab; the cat is already out of the bag. The map was out there for the world to see for several hours at a meeting attended by hundreds of people . . . .
Ms. Taylor challenged the Cabinet's liberal construction of KRS 61.878(1)(j) to support its denial of her request for public comments. She observed:
The letters from members of the general public are not "memoranda" or "recommendations" in the sense that the law requires for exemption according to the Cabinet's citations, but are simply what they are: public comments solicited by a state agency to establish which way the wind of public opinion blows. As a member of the public and a property owner in the general vicinity of the proposed road, I have a [sic] the absolute right to know which way that wind blows, too, even if the names of the correspondents are redacted.
Even on the wild chance that a property owner wrote in to demand a certain price for his land, this cannot be considered part of a real estate appraisal but would be mere public blustering. The right-of-way phase for this road is not scheduled until 2001, and such appraisals are clearly a long way off. The road has yet to be included in any state budget and is not in any six-year road plan.
Ms. Taylor urged this office to issue a decision declaring that the Transportation Cabinet's denial of her request violates the Open Records Act.
In a follow-up letter directed to this office, Assistant General Counsel Todd Shipp responded to Ms. Taylor's complaints. He argued:
KRS 61.878(1)(F) [sic] allows for the Commonwealth of Kentucky, Department of Highways the opportunity to develop and study the feasibility of future road sites without the added burden of land speculation and developers of getting the benefit of knowing where a new road is going and thus increasing the costs of the acquisition of property and ultimately affecting the feasibility of road development. It simply cannot be ignored that disclosure of this very preliminary engineering evaluations would have a detrimental affect [sic] on potential economical road development.
Second, the Department of Highways has requested and has graciously received return of private expression of opinion from private citizens on this proposed road as in other potential projects. To allow this to be released publicly and potentially face publication in the local paper or to be confronted by a disagreeing party would put a chill on this process. KRS 61.878(1)(I) [sic] and KRS 61.878(1)(j) both allow for the exemption of this type of release. To get private citizens to participate in this process confidentially must be respected.
Ms. Shipp did not refute any of the factual allegations which Ms. Taylor had made.
We concur with Ms. Taylor in her view that the Cabinet interprets KRS 61.878(1)(f) in a more liberal manner than is warranted by its express terms. That exception 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.
On the issue of the proper scope of KRS 61.878(1)(f), the Attorney General has observed:
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.
92-ORD-1374, p. 3. In light 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), this office has, in a series of open records decisions, declared that the Cabinet's interpretation of the exception is too broad and all-encompassing. See, for example, 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); 98-ORD-175 and 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 the decisions cited above, the Cabinet interprets KRS 61.878(1)(f) too broadly. Ms. Taylor did not request access to the contents of real estate appraisals, engineering or feasibility estimates, and evaluations, but instead requested access to, and a copy of, the map of the projected bypass project that was publicly displayed at a public meeting held on September 9, 1999. Simply stated, a map is not the functional equivalent of the contents of a real estate appraisal or an engineering or feasibility estimate or evaluation. It therefore cannot be said to qualify for exclusion under KRS 61.878(1)(f).
Moreover, we do not believe that the Cabinet can persuasively argue that disclosure of the map, at this juncture, will detrimentally affect potential economical road development since the same map was publicly displayed at the September 9 meeting. As we noted in a past open records decision, "To suggest that [the requester] could have inspected the record [in a public forum], but cannot now have access to it through the mechanism of an open records request, is unreasonable." 97-ORD-183, p. 5. The purposes for which KRS 61.878(1)(f) was enacted are not served by the nondisclosure of a record which the Cabinet voluntarily made available for public inspection just a few months ago. We therefore conclude that the Cabinet improperly relied on KRS 61.878(1)(f) in denying this part of Ms. Taylor's request.
Turning to the second part of that request, we find that the Cabinet also erred in refusing to disclose public comments relating to the bypass project which were solicited by the Department of Highways. In denying this request, the Cabinet relied on KRS 61.878(1)(j) which excludes from public inspection:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
Without specifically explaining how the exception applied to the records withheld, the Cabinet made an urgent plea for governmental confidentiality to insure continued public participation.
On the issue of public access to written communication between a private citizen and a public official or agency, the Attorney General has observed:
Not all writings from individuals to a government agency can be considered correspondence with private individuals. Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as take disciplinary action against a licensee, or enter into a government contract based on the bids. In each instance, disclosure is mandatory upon request after the final governmental action.
OAG 90-142, p. 6. In support of this position, the Attorney General cited OAG 90-7 (contractor forfeits his status as a private citizen when he corresponds with a public agency on issues pertaining to administration of his contract with that agency); OAG 90-13 and OAG 79-69 (voluntary surveys submitted by private individuals to public agencies are excluded from inspection in contrast to involuntary reports which must be disclosed); and OAG 89-31 (private bids on public contracts are not excluded from inspection) . Decisions issued after OAG 90-142 confirm this principle. See, for example, 97-ORD-1 (letters of interest from farm owners concerning agricultural conservation easements are not exempt from public inspection since agency relied on them in taking action); 94-ORD-45 (recorded messages on viewer call-in portion of city commission's televised meetings are subject to public inspection) . Thus, although there is a strong public interest in encouraging citizens to communicate with public officials and agencies on issues of local or national interest, the Open Records Law does not insure that in all instances such communications will be protected.
In the appeal before us, our efforts to apply these principles to the disputed records are frustrated by the Cabinet's failure to explain, briefly (KRS 61.880(1)), or with any degree of particularity (
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996)), how the cited exception applies to the records withheld. Ms. Taylor requested all public comments concerning the proposed bypass project in Jessamine County. This might include oral comments from persons attending a public meeting that were reduced to writing, or written comments submitted by individuals in response to agency solicitations with no expectation of confidentiality. Conversely, it might include written communications from private citizens to the Cabinet describing the impact the project may have on the writer's personal, financial, or family situation, and submitted with some expectation of confidentiality. If responsive records exist that fall within the category of public comment reduced to writing or written comment submitted with no expectation of confidentiality, those records must be disclosed. If, on the other hand, no such records exist, the Cabinet must affirmatively so state. OAG 90-26, p. 4. ("If a record of which inspection is sought does not exist, the agency should specifically so indicate").
In closing, we remind the Cabinet, as we have before, of our concerns relative to the manner in which it handles open records requests. In 98-ORD-175, these concerns prompted us to comment:
In postponing its final response to his request, the Cabinet relied on KRS 61.872(5) which provides:
It is the Cabinet's position that it complied with this statute by advising [the requester] that the delay was occasioned by the need to locate the records he requested, and notifying him that a response would be issued [in approximately two weeks]. 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 . . . responses created in the appeal before us. We urge the Cabinet to bear these observations in mind in responding to future open records requests.
98-ORD-175, p. 5. We reaffirm these concerns, and again urge the Transportation Cabinet to focus its energies on strict compliance with the letter of the Open Records Law.
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.