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 Kenton County Fiscal Court violated the Open Records Act in the disposition of Nathan Smith's requests for records pertaining to the acquisition of the real property located at 501 Main Street, Covington, Kentucky. For the reasons that follow, we find that the Fiscal Court's disposition of Mr. Smith's requests constituted a partial violation of the Act.
On February 9, 2001, Mr. Smith submitted a request for eight categories of documents relating to the acquisition of the 501 Main Street property. Among other things, he requested copies of:
1. All documents relating to the acquisition of the real property located at 501 Main Street;
. . .
3. Any appraisal or appraisals of the real property located at 501 Main Street;
. . .
7. Documents regarding other properties considered by Kenton County prior to its acquisition of the real property located at 501 Main Street[.] 1
In a timely response issued by Kenton County Fiscal Court's records custodian, Brandon N. Voelker, the Fiscal Court partially honored Mr. Smith's request, but withheld some records identified in his request. In response to Mr. Smith's requests for documents relating to the acquisition of the property (Request 1), and documents regarding other properties considered (Request 7), Mr. Voelker advised that "[n]o documents exist other than the sales contract." Mr. Voelker denied Mr. Smith's request for any appraisals of the property (Request 3), explaining:
Pursuant to KRS 61.878(3)(f) [sic] any appraisals relating to the aforementioned property are not subject to public dissemination prior to the Fiscal Court acquiring said property.
Mr. Voelker indicated that the Fiscal Court would not acquire the property "until the closing date and title passes to the Fiscal Court."
Shortly thereafter, Mr. Smith submitted a second request for records relating to the acquisition of the property located at 501 Main Street, including
. . .
4. Any leases of property located at 501 Main Street;
. . .
7. Any documents regarding the intended use by Kenton County of the property located at 501 Main Street. 2
In another timely response issued on behalf of the Kenton County Fiscal Court, Mr. Voelker denied these requests, advising Mr. Smith that no responsive records reside in the custody of the Fiscal Court. This appeal followed.
In his February 16 letter of appeal, Mr. Smith challenges the Fiscal Court's denial of his request for a copy of any appraisal regarding the property, based on KRS 61.878(1)(f), arguing that the cited exception "does not apply because on February 1, 2001, the Judge/Executive executed a binding purchase contract [,] . . . the Fiscal Court's purchase of the building has been widely reported in the newspapers[,] . . . [and] the Fiscal Court disclosed a short appraisal letter to third parties. " In addition, Mr. Smith complains "about the dishonest manner" in which the Fiscal Court responded to his requests for all documents relating to the acquisition of 501 Main Street, and for documents relating to other properties considered by Kenton County prior to the acquisition of 501 Main Street. Notwithstanding Mr. Voelker's statement that no responsive records exist, Mr. Smith asserts that he has "learned that such documents do exist . . . [and] were disclosed to third parties. " Similarly, Mr. Smith complains that the Fiscal Court improperly withheld the records identified in requests 4 and 7 of his February 12 request, 3 on the basis of their nonexistence, again noting that he has "learned that such documents do exist, . . . [and] were disclosed to third parties. " 4 As evidence that such records actually exist, Mr. Smith furnished this office with copies of records that are, in his view, responsive to requests 1 and 7 of his February 9 request, and requests 4 and 7 of his February 12 request. 5
In a supplemental response directed to this office following commencement of Mr. Smith's appeal, Mr. Voelker elaborated on the Kenton County Fiscal Court's position. With reference to the one page report prepared by The Appraisal Company, he observed:
The Kentucky Revised Statutes are clear, real estate appraisals are exempt. The statute exempting said reads as follows, "the contents of real estate appraisals made by or for a public agency relative to acquisition of property, until such time as all of the property has been acquired." See KRS 61.878(f). To date, the only document that exists is a one-page report. The appraisal company has not prepared a final report. The Fiscal Court will not acquire the property until the closing date.
Mr. Smith references the fact that he has a copy of this one page report. The only party who has requested the appraisal, through my office, is Mr. Smith. I serve as the Records Custodian and all Open Records requests are handled by me. As stated in my response, once the Fiscal Court acquires the property, and the appraisal report is prepared, I will be more than happy to make the documentation available for Mr. Smith. The only document that exists at this time is the one page report. The Fiscal Court has signed a purchase contract, but the Court will not acquire the property until the closing, which is scheduled for February 28, 2000. The landowners have an absolute right to privacy, and in the event the purchase does not occur, they have an absolute right to think that any appraisal associated with said purchase contract will not be used to hinder future attempts to sell the property.
With reference to Mr. Smith's characterization of his responses to certain of Mr. Smith's requests as "dishonest, " Mr. Voelker commented:
Mr. Smith next states that my responses to his November 9, 2001 [sic] requests numbered 1 and 7 were dishonest. At the time that I responded to Mr. Smith's request, I was not aware of any other documents relating to the acquisition of the real property located at 501 Main Street. To date, I remain unaware of any other documents. I personally prepared the purchase contract for the property and in preparing said contract, I did not use any other documentation, other than verbal comments from the County's realtor, Ken Harper and Special Projects Director, Ralph Bailey. Furthermore, I was not aware of documents relating to other properties considered. Both Ralph Bailey and Ken Harper were and still are out of town, in Florida, and to my knowledge no other documents exist. Under the County's Open Record's Policy, Mr. Smith could come to the County office during normal business hours and seek out the documents he believes exist. I will be happy to assist in his search. It is my understanding that Ken Harper and Ralph Bailey looked at numerous buildings in Covington, but I do not know if they prepared any written reports.
. . .
The remaining two issues involve the Open Records Request dated February 12, 2001. I will also address each individually. Mr. Smith requested copies of any leases of property located at 501 Main Street. As I discussed earlier, I prepared the purchase contract and referenced existing leaseholds, but I was not aware of copies of any existing leases. In a real estate transaction these would typically be turned over at the closing. If and when I encounter any lease contracts in the possession of the Fiscal Court, I will readily make them available to the public.
Finally, Mr. Smith requested documents "regarding the intended use by Kenton County of the property located at 501 Main Street, Covington, Kentucky." Once again, I responded that no documents exist. I am not aware of any documents that state what the Fiscal Court will do with the building. The Court bought the building for purposes of moving the administrative offices, but this was never formally put to writing, it was simply understood. This request was not an Open Records Request, but rather a question, much like an interrogatory in a civil action. If written documentation to this effect exists, I will make it available to the public.
In closing, Mr. Voelker extended an invitation to Mr. Smith to meet with him in an "attempt to locate any document he desires to view." While we commend the Kenton County Fiscal Court for its willingness to work with Mr. Smith toward the goal of locating the records identified in his request, we find that the Fiscal Court's disposition of his requests fell short of the legal requirements of the Open Records Act, and that it improperly relied on KRS 61.878(1)(f) in denying his request for the one page report constituting the functional equivalent of a real estate appraisal. We examine these issues below.
One page report prepared by The Appraisal Company
On February 9, Mr. Smith requested a copy of, inter alia, "any appraisal or appraisals of the real property located at 501 Main Street, Covington, Kentucky." The Kenton County Fiscal Court denied this request, relying on KRS 61.878(1)(f). That exception authorizes public agencies to withhold:
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. . . .
Mr. Voelker defends the Fiscal Court's denial of this portion of Mr. Smith's request, asserting that KRS 61.878(1)(f) authorizes nondisclosure of real estate appraisals until the subject property is acquired at closing. He argues, on behalf of the landowners, that should the purchase fall through, "any appraisal associated with the purchase contract [should] not be used to hinder future attempts to sell the property." Acknowledging that a purchase contract has been executed by the Fiscal Court, Mr. Voelker maintains that the "appraisal, " consisting of the one page report prepared by The Appraisal Company, may not be disclosed until the February 28, 2001 closing. In our view, this construction of KRS 61.878(1)(f) is at odds with the language of the exception, the rule of statutory construction, and the weight of legal authority.
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.
Guided by these well-established principles, we find that the liberal construction of KRS 61.878(1)(f) advanced by the Kenton County Fiscal Court is not supported by the narrow language of the exception, or the purposes underlying it. In construing KRS 61.878(1)(f), 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 other 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.
95-ORD-98, p. 5. Thus, we have recognized that KRS 61.878(1)(f) is "purposed to subserve the public interest by insuring that agencies will not be unfairly disadvantaged in negotiations for the acquisition of real property through premature disclosure of the terms and conditions of specific offers." 95-ORD-98, p. 6.
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, determined that various public agencies' 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 an agency 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 public agency properly withheld real estate appraisals on property where all necessary parcels had not been acquired).
Here, as in the decisions cited above, we find that the agency interprets KRS 61.878(1)(f) too liberally. In 97-ORD-191, this office rejected the Simpson County Schools' argument that KRS 61.878(1)(f) authorized nondisclosure of records relating to the acquisition of real property until the property had been acquired, notwithstanding the fact that the school system's offer had been accepted, negotiations concluded, and the purchase contract executed (subject to a financing contingency). At page 4 of that decision, we expressed our inability to "see how the school system will be unfairly disadvantaged by disclosure of the terms and conditions of the purchase agreement . . . [inasmuch as] success in the acquisition of the property turns on the school system's ability to secure financing . . ., not its ability to negotiate acceptable terms and conditions." In the appeal before us, a purchase contract has been executed for the acquisition of a single parcel of property, subject to certain conditions enumerated in Section 5 of the contract. Negotiations between these parties have been concluded, and the purposes for which the exception codified at KRS 61.878(1)(f) was enacted have been satisfied. However laudable the Kenton County Fiscal Court's concern for protecting the landowners' interest might be, it is the Fiscal Court's interest in avoiding unfair negotiations in the acquisition of real property that underlies the cited exception, and this interest cannot be compromised where only one parcel of property is being acquired, and the terms and conditions of the purchase have been contractually settled.
Our conclusion is not altered by the fact that a "final appraisal" had not been prepared when Mr. Smith submitted his request. A document answering this description existed on that date, namely the February 5, 2001, "final value indication" submitted by The Appraisal Company in advance of the appraisal report. Having concluded that the Fiscal Court's reliance on KRS 61.878(1)(f) as a basis for withholding this document was misplaced, and no other statutory basis supporting nondisclosure having been advanced, we find that the Kenton County Fiscal Court improperly denied this portion of Mr. Smith's request.
Adequacy of agency search
The Attorney General is not equipped, as a rule, to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. Nevertheless, in the appeal before us, the paucity of the records produced, coupled with the Fiscal Court's failure to document what steps were taken to locate the records requested, compels us to examine the adequacy of its search. Clearly, responsive records existed that were not produced by the Fiscal Court in the disposition of Mr. Smith's open records request, but that he obtained through other sources.
In 95-ORD-96, this office articulated a standard by which to judge the adequacy of an agency's search for public records. At page of that decision, we observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
The record before us does not suggest that the Fiscal Court's custodian of records made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the requested records," but instead relied upon his limited knowledge of available records. The methodology employed did not constitute an adequate search. In our view, his search should have extended to the offices of Judge Murgatroyd, Deputy Judge Kimmach, and Project Manager Ralph Bailey, Jr., as well as any other organizational unit of Kenton County government that could reasonably be expected to produce additional records pertaining to the acquisition of 501 Main Street. The custodian's exclusive reliance on his own knowledge of existing responsive records, and failure to document a good faith effort to identify and locate the requested records using methods that could reasonably be expected to produce the records, did not satisfy the agency's statutorily imposed burden of proof in sustaining its action. See 01-ORD-56.
Selective Disclosure
Mr. Smith alleges that copies of records to which he was denied access were released to media representative. In support, he attaches copies of those records which he indicates were obtained through the media. He does not indicate from what governmental source members of the media obtained these records. Nevertheless, his allegations raise the issue of selective disclosure of public records.
The Attorney General has long recognized that all persons have the same standing to inspect public records under the Open Records Act, and that the purpose for which an individual requests those records is irrelevant. OAG 79-546; OAG 80-641; OAG 89-86; OAG 91-129; 92-ORD-1136; 96-ORD-110; 01-ORD-8. Thus, we have observed, "If one person [in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect." OAG 89-86, p. 5. The Kentucky Court of Appeals has spoken even more definitively on this subject, opining:
Our analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the legislature clearly intended to grant any member of the public as much right to access to information as the next.
Zink v. Commonwealth, Ky. App. 902 S.W.2d 825, 828 (1994). "The exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of inspection. " OAG 82-233, p. 3. As a rule, the media enjoys no greater right of access to public records than the public generally. OAG 79-582; 94-ORD-90.
If evidence existed that the Fiscal Court had engaged in the practice of selective disclosure of its records through its custodian of record, this office would be bound to declare its practice a violation of the Open Record Act. However, Mr. Voelker denies that he disclosed records relating to the acquisition of 501 Main Street to anyone other than Mr. Smith, and Mr. Smith is unable to produce evidence to refute this. It appears that the records he obtained from members of the media were disclosed to the media through unofficial channels. The record does not establish for what reason they were unofficially disclosed, and this is not an appropriate subject for inquiry by the Attorney General in the discharge of his duties under KRS 61.880(2). Suffice it to say that in the absence of proof of selective disclosure of the records by the Kenton County Fiscal Court, we find no violation of the Act.
Conclusion
In sum, we find that the Kenton County Fiscal Court improperly relied on KRS 61.878(1)(f) in denying Mr. Smith access to the February 5, 2001 appraisal prepared by The Appraisal Company, and failed to fully discharge its statutory duties by conducting an adequate search for the records identified in Mr. Smith's request. However, we find no evidence of the practice of selective disclosure of public records of the Fiscal Court and therefore no violation of KRS 61.872(1), and commend the Fiscal Court for its willingness to work with Mr. Smith, in a spirit of cooperation, towards the goal of locating and furnishing through official channels records previously released through unofficial channels.
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.
Nathan Smith22 West Maple AvenueFt. Mitchell, KY 41011
Richard MurgatroydKenton County Judge Executive303 Court StreetCovington, KY 41011
Barbara BlackCommissioner, Kenton County Fiscal Court303 Court StreetCovington, KY 41011
Dan HumpertCommissioner, Kenton County Fiscal Court303 Court StreetCovington, KY 41011
Adam KoenigCommissioner, Kenton County Fiscal Court303 Court StreetCovington, KY 41011
Brandon N. Voelker Kenton County Fiscal Court303 Court StreetCovington, KY 41011
Garry EdmonsonAttorney, Kenton County Fiscal Court303 Court StreetCovington, KY 41011
Footnotes
Footnotes
1 Mr. Smith does not contest the Fiscal Court's disposition of requests 2, 4, 5, 6, and 8.
2 Mr. Smith does not contest the Fiscal Court's disposition of requests 1, 2, 3, 5, an d 6.
3 These records consisted of any leases of property located at 501 Main Street, and records related to Kenton County's intended use of the property.
4 In a February 23 letter directed to this office, Mr. Smith identifies these third parties as members of the media. It was from this source, he maintains, that he obtained the "nonexistent" records.
5 These records consisted of:
1. 2/5/01 letter from Anthony and JoAnn Walsburger, The Appraisal Company, to Ralph Bailey, Project Manager, containing initial findings relative to the value of the 501-515 Main Street property;
2. 1/4/01 memorandum from Richard S. Kimmach, Deputy Judge and Chief of Staff, to Kenton County Judge/Executive Richard L. Murgatroyd, concerning the need to hire an expert in commercial real estate sales, and recommending approval of a professional services contract for Kenneth F. Harper, Harper Realty, LLC;
3. 1/8/01 contract for professional services between Fiscal Court and Ken Harper;
4. 2/6/01 memorandum from Richard S. Kimmach to Judge/Executive Richard Murgatroyd and members of Fiscal Court analyzing various parcels of property relative to the long term needs of the Fiscal Court. Also signed by Ralph Bailey to signify his concurrence;
5. 2/1/01 memorandum from Richard S. Kimmach and Ralph Bailey, Jr. to Judge Murgatroyd recommending purchase of property located at 501 Main Street through non-competitive negotiations as a sole source procurement;
6. 2/1/01 Purchase Contract between Main Properties LLC and Kenton County Fiscal Court;
7. Deed description, Vol. 1186 page 199, and attached survey, Vol. 1186, page 200;
8. One page document entitled Main Street Properties, LLC Rent Schedule.