Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
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 William F. Threlkeld's request to "examine and copy in its entirety, including all attached exhibits and supporting data, each appraisal received by the Commonwealth of Kentucky or any of its subdivisions or agencies relating to the value of land which Kentucky acquired by these two deeds. " For the reasons that follow, we conclude that, although Cabinet's initial response was procedurally deficient, it properly denied Mr. Threlkeld's request.
In a supplemental response to this office, Assistant General Counsel Todd Shipp provided information indicating that the appraisals and supporting documents that Mr. Threlkeld requested related to a highway project in Grant County 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."
Pursuant to a request from this office for clarification on the issues raised in this appeal, Mr. Shipp, by letter dated February 12, 2002, provided the following additional information:
The initial request by Mr. Threlkeld had confused two project sites and had made specific requests for the parcels of each belonging to Larry Spears and Robert Wallace. The first being a project from 1997 and the second being dated April 9, 2001. The first project from 1997 has been concluded and as such, personnel in our District 6 Office have been alerted to allow Mr. Threlkeld access to those documents.
However, the second of these deeds dated April 9, 2001, while conveyed to the Commonwealth by Spears/Wallace, the right of way acquisitions for this project are still ongoing and in active litigation. In fact, there are five active cases ongoing in the Grant Circuit Court. It is our understanding that Mr. Threlkeld may very well be involved in two of those actions. For this reason, we continue to cite the specific exception as noted in our response to this appeal.
For the reasons that follow, we conclude that the actions of the Cabinet, with the exception of a procedural deficiency, were substantively in compliance with the Open Records Act.
Addressing first, the request for the 1997 appraisals and supporting documents, the Cabinet has indicated that the project in which these records were involved has been concluded and those records will be made available to Mr. Threlkeld. Accordingly, as to these records the appeal is moot and no decision will be rendered as to them. 40 KAR 1:030, Section 6.
Addressing next the request for the appraisals on the April 9, 2001 deed conveyance, the Cabinet denied access to these records under KRS 61.878(1)(f). As Mr. Shipp's letter of clarification explained, the right of way acquisitions for this project are still ongoing and in active litigation.
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.
Because the Transportation Cabinet has not yet acquired all of the parcels of land for this road improvement project in Grant County, the appraisals on the property at issue may properly be withheld under KRS 61.878(1)(f).
Turning to the procedural issue, we find the Cabinet's initial response was procedurally deficient. KRS 61.880(1) sets forth the procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Cabinet's initial response was procedurally deficient in failing to provide a "brief explanation of how the cited exception [KRS 61.878(1)(f)] applied to the record[s] withheld, " as required by KRS 61.880(1).
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.
William F. Threlkeld144 N. Main StreetP.O. Box 277Williamstown, KY 41097-0277
Ed RobertsTransportation CabinetState Office BuildingFrankfort, KY 40601
Todd ShippTransportation CabinetState Office BuildingFrankfort, KY 40601