Request By:
Gayle E. Slaughter
Attorney at Law
453 Ohio Street
Lexington, KY 40508Michael R. Sanner
Corporate Counsel
Department of Law
Lexington Fayette Urban County Government
150 East Main Street
Lexington, KY 40507
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government (LFUCG) violated the Open Records Act in denying portions of Gayle Slaughter's February 1, 2005 request for information and records relating to LFUCG's condemnation proceeding involving the Lyric Theater property located on East Third Street in Lexington, Kentucky. For the reasons that follow, we find that LFUCG's response to Ms. Slaughter's request did not violate the Open Records Act.
By letter dated February 1, 2005, Ms. Slaughter submitted an open records request to the LFUCG Open Records Custodian setting forth nine separate numbered requests, which can be described generally as requests for records of correspondence, payments for appraisals, appraisals and supporting documentation and notes relating to the appraisals, involving the Lyric Theater.
In her appeal, Ms. Slaughter appeals the LFUCG's denial of requests 1, 2, 6, 7 and 8. Those requests asked for:
1. All documents and information exchanged by and between Milton Dohoney, CAO, and private citizens, groups, entities, corporations, etc., regarding the Lyric Theater, including but not limited to correspondence sent and received between the year 2002 and the date on which you respond to these requests.
2. The second appraisal done by the Realty Research Corporation in or about late 2004 or early 2005 on the Lyric Theater located at 300 E. Third St. (aka 300 - 306 and/or 300-308 E. Third St.).
6. The " supporting documentation concerning data, reasoning, and analyses is retained in the appraiser's file " mentioned on page 4, section 3 entitled "Purpose of the Appraisal" in the document entitled Summary Appraisal Report on 300 East Third Street, Lexington KY 40507 dated December 1, 2004 under transmittal letter dated December 10, 2004 prepared by E. Clark Toleman (aka E. Clark Toleman Real Estate Appraisal Services") and his agents and assigns.
7. All other documents, information and notes in the possession of E. Clark Toleman (aka "E. Clark Toleman Real Estate Appraisal Services") and his agents and assigns relating to and referenced in (if any) the following specific real estate appraisals done for LFUCG and its agents and assigns and not disclosed in response to request number 6 above.
8. All other documents, information and notes in the possession of Realty Research Corporation and its agents and assigns (including but not limited to Thomas E. Collier and Mark L. Petersen ) relating to and referenced in (if any) the following specific real estate appraisals done for LFUCG and its agents and assigns:
By letter dated February 4, 2005, Michael R. Sanner, Corporate Counsel, LFUCG, responded to Ms. Slaughter's request. Addressing those requests relevant to this appeal, he advised:
With regard to item no. 1, the Attorney General has stated that as a precondition to inspection, a requesting party must identify with reasonable particularity those documents which he wishes to review. The Attorney General has stated that a request for any and all records which contain a name, a term or a phase is not a properly framed open records request, and that it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. 00-ORD-132.
Furthermore, the Attorney General has stated that the Open Records Act was not intended to provide a requestor with particular information or to require public agencies to compile information to conform to the parameters of a given request. 00-ORD-7.
Regarding item no. 2 of your request, KRS 61.878(1)(f) exempts from inspection except upon Order of a Court, the contents of real estate appraisals. Pursuant to the above-referenced statute, the Realty Research Corporation appraisal will not be available for your inspection. Furthermore, KRS 61.878(1) provides that records which are not available in discovery cannot be obtained by an open records request. Since the document was not available to you in discovery, it is also not available to you under the Open Records Act pursuant to the above-referenced statute.
?
Regarding item number 6 of your request, the Lexington-Fayette Urban County Government is not the official custodian of documentation retained in E. Clark Toleman Real Estate Appraisal Services' file. Furthermore, if these documents were in the custody of the government they would be exempt under KRS 61.878(1)(f) as the contents of real estate appraisals. Additionally, these documents would be exempt under KRS 61.878(1)(i) as preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. The documents are also exempt pursuant to KRS 61.878(1)(j) as preliminary recommendations and preliminary memoranda which opinions are expressed or policies formulated or recommended.
With regard to Item No. 7 of your request, see response to item no. 1 regarding blanket requests and see response to item no. 6 regarding the LFUCG not being the official custodian of these records and the records are exempt as real estate appraisal and preliminary. [KRS 61.878(1)(f)(i)(j)]
Regarding item no. 8 of your request, please see response to item no. 1 regarding a blanket request and response to item no. 6 regarding the LFUCG not being the official custodian of these records; the records being exempt pursuant to KRS 61.878(1)(f) as real estate appraisals and KRS 61.878(1)(i) and (j) as preliminary.
On February 8, 2005, Ms. Slaughter initiated the instant appeal. In her letter of appeal, she argued as to item no. 1 that her request for documents "exchanged by and between Milton Dohoney" and private citizens, groups, entities, corporations, etc. "regarding the Lyric theater" and "received between the year 2002 and the date on which you respond to these requests," was sufficiently specific for the LFUCG to identify and locate the requested records.
As to items no. 2 and 6, Ms. Slaughter argued that KRS 61.878(1)(f), which exempts disclosure of real estate appraisals, is "patently unconstitutional" and public policy "favors the release of information paid for by the taxpayers, which the appraisals clearly are." In addition, regarding item no. 6, she further argued that the supporting documentation in reference to Mr. Toleman's "Summary Appraisal, " were not preliminary documents subject to nondisclosure because they were referenced and incorporated into the final appraisal and that any privileged information in these documents were waived by release of the Summary Appraisal.
As to items no. 7 and no. 8, Ms. Slaughter adopted her argument in item no. 1 that the requests were sufficiently specific to enable LFUCG to respond and adopted her arguments set forth in support of her requests in items no. 2 and 6, set out above.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Sanner provided this office with a response to the issues raised in the appeal. Elaborating on LFUCG's original response, Mr. Sanner addressed request item no. 1 and explained that a limited search was done for documents of Mr. Dohoney from the class of records requested that was limited by a name or specifically referenced to "Lyric Theater" and no records were found responsive to her request. He again argued that:
Without any further limitation on the class of record she seeks, LFUCG would be required to review every record of Milton Dohoney from 2002 to the present, regardless of physical form or characteristic, which was prepared, owned, used, in possession of or retained by him during that time period to determine whether the phrase "Lyric Theater" appears in or on the record relates in any way to the Lyric Theater. In 05-ORD-014, the Attorney General held that this type of request was a blanket request and an undue burden on the Government.
Addressing Ms. Slaughter's request items no. 2, and 6, Mr. Sanner explained, in relevant part:
Item 2 of Ms. Slaughter's request was for the second appraisal done by Realty Research Corporation in or about late 2004 or early 2005 on the Lyric Theater located at 300 E. Third Street (a/k/a 300-306 and/or 300-308 E. Third Street. Ms. Slaughter's request was denied pursuant to KRS 61.878(1)(f) . . . .
?
Realty Research Corporation conducted an appraisal of the Lyric Theater in the condemnation case regarding the Lyric Theater. At this time, the Lyric Theater has not been acquired by the LFUCG. Therefore, pursuant to the above-referenced statute, the real estate appraisal cannot be made public until the Lyric Theater is acquired.
Additionally, Ms. Slaughter's request was denied pursuant to KRS 61.878(1) which provides that records which are not available in discovery shall not be obtained by an open records request. Ms. Slaughter requested the appraisal in discovery but the appraisal was denied pursuant to Civil Rule 26.02(4)(b). The decision was made by the LFUCG not to use the Realty Research Corporation and its appraisal as LFUCG's expert for trial. Pursuant to the above referenced Civil Rule, the Real Estate Appraisal is not discoverable unless Ms. Slaughter can show exceptional circumstances for which she cannot obtain her own appraisal. Clearly, the open records law cannot be used to circumvent the Civil Rules of Discovery in ongoing litigation.
Addressing items no. 6 and 7, which involved the requests for the supporting documentation for the "Summary Appraisal Report" done by E. Clark Toleman Real Estate Services, dated December 1, 2004, for the Lyric Theater and "all other documents" in the possession of the appraiser service pertaining to the Lyric Theater, Mr. Sanner advised:
Ms. Slaughter's request was denied for several reasons. The first being Ms. Slaughter asked to inspect documents in E. Clark Toleman's personal work file. The LFUCG is not the custodian of E. Clark Toleman's personal work file. The LFUCG paid for a final appraisal by E. Clark Toleman on the Lyric Theater which was presented to the LFUCG (this appraisal was also provided to Gayle Slaughter in discovery in the Lyric Theater case.) The LFUCG received what it paid for (the final document regarding the appraisal) and is the custodian of the appraisal report only and not the custodian of E. Clark Toleman's supporting documentation contained in his file.
?
Item no. 7 of Ms. Slaughter's request that is under appeal is for all other documents . . . in the possession of . . . E. Clark Toleman Real Estate Services . . . related to the following specific real estate appraisals . . . dated December 1, 2004 . . . [and] November 14, 1996 [on the Lyric Theater].
This request was denied as a blanket request as it asked for all documents and information in possession of E. Clark Toleman relating to appraisals on the Lyric Theater. (See discussion of blanket requests in response to item no. 1). The request was further denied, as the LFUCG is not the official custodian of all documents, information and notes in the possession of E. Clark Toleman. Finally, if the documents were in the possession of the LFUCG, they would be exempt as a real estate appraisal and as preliminary [KRS 61.878(1)(f)(i)(j)] (See response to item no. 6 regarding the real estate appraisals and preliminary documents.)
Addressing item no. 8, which involved the request for appraisal documents of Realty Research Corporation involving the appraisal of the Lyric Theater and "all other documents" done for LFUCG during 2004-2005 and 1997, Mr. Sanner advised that this request was denied on the same basis as the requests in items no. 6 and 7 above and further stated:
Furthermore, this request seeks access to documents that were not made available to Ms. Slaughter in discovery pursuant to Civil Rule 26.02(4)(b). Clearly Ms. Slaughter is trying to circumvent the discovery rules by seeking documents not discoverable under the Civil Rules. (See response to item no. 2 regarding exemption of non-discoverable documents.
We are asked to determine whether the LFUCG's response to Ms. Slaughter's request items nos. 1, 2, 6, 7, and 8 violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
We address first request item no. 1, which asked for "[a]ll documents and information exchanged by and between Milton Dohoney, CAO, and private citizens, groups, entities, corporations, etc., regarding the Lyric Theater" from 2002 to the date of the agency's response to the request. LFUCG responded that it performed a limited search under "Lyric Theater" and found no records responsive to the request and further argued that the request was a blanket request which would require it to review every record of Mr. Dohoney's from 2002 to the present to determine whether the phrase "Lyric Theater" appeared in or related to the Lyric Theater. Ms. Slaughter argued that her request was sufficiently specific to enable LFUCG to identify and locate the requested records. We conclude that each party was correct in part and incorrect in part.
In 05-ORD-014, we discussed open-ended blanket requests, observing:
As correctly argued by the LFUCG, this office has historically criticized "open-ended-any-and-all-records-that-relate-type requests" relating to a particular subject(s) or individual(s) such as the first request at issue. 03-ORD-040, p. 2; 99-ORD-14; 96-ORD-101. More specifically, the Attorney General has recognized:
99-ORD-14, p. 5 (Emphasis added); 03-ORD-040. . . .
We conclude that Ms. Slaughter's request was sufficiently specific to enable LFUCG to search for records specifically labeled or identified by "Lyric Theater," which the agency did and advised her that no records were found. The agency discharged its duty under the Open Records Act by affirmatively so advising. 99-ORD-150. On the other hand, we find that to require LFUCG to conduct a search of every record of Mr. Dohoney's from 2002 to present to see if the term "Lyric Theater" appeared or related to the theater would impose an unreasonable burden on the agency. 05-ORD-014.
Next, we conclude that LFUCG properly relied upon KRS 61.878(1)(f) in denying that portion of Ms. Slaughter's request items no. 2, 6, 7, and 8, that asked for copies of appraisals and supporting documents pertaining to the Lyric Theater.
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.
LFUCG advised that its condemnation proceeding over the Lyric Theater is still pending and, at this time, the Lyric Theater has not yet been acquired. Under this circumstance, the real estate appraisals and supporting documentation may be withheld from disclosure under authority of KRS 61.878(1)(f). 04-ORD-117; 97-ORD-171; OAG 89-42.
Moreover, Mr. Sanner advised that Ms. Slaughter's discovery request for the appraisal requested in her request item no. 2, had been denied by the LFUCG, pursuant to Civil Rule 26.02(4)(b) and denied this request under KRS 61.878(1), which provides that records which are not available to a party in discovery shall not be available to the party through an open records request. Accordingly, under these facts, we conclude that LFUCG properly relied upon KRS 61.878(1) in denying Ms. Slaughter's request for a copy of the requested appraisal. 01-ORD-95.
We next address Ms. Slaughter's requests for copies of supporting documentation and appraisal records retained or in the files and possession of the private appraisal companies in request items no. 6, 7, and 8. The records at issue here are analogous to the records involved in 95-ORD-156. In that decision, we held that the City of Louisville properly denied a request for the interview transcripts, tapes and completed interview questionnaires generated by Coopers & Lybrand, which had been retained by the City to do a study of the Revenue Commission. Regarding these records, we stated, at pages 3 and 4:
Inasmuch as they are neither "prepared, owned, used, in the possession of [nor] retained" by the City of Louisville, they cannot be characterized as public records for purposes of the Open Records Act. KRS 61.870(2). Although the Coopers & Lybrand study of the Revenue Commission is, if adopted by the City in final agency action, a public record, the work papers which were used in preparing the study, like the confirmation tickets which were used in preparing the monthly accounting statement in 95-ORD-125, are not. And, as in that appeal, although the City might have requested copies of the work papers, it elected not to do so, relying instead on the study itself. Again, we decline [the requester's] invitation to substitute our judgment for the public agency's in deciding what records should be created or retained. It is the Coopers and Lybrand study which [the requester] is entitled to inspect, if adopted, under the open records provisions, just as it was the monthly accounting statements which the requester was entitled to inspect under the facts presented in 95-ORD-125.
Because the appraisal records Ms. Slaughter seeks were not prepared, owned, used, in the possession of or retained by the LFUCG, they are not governed by the Open Records Act. We find that the LFUCG properly denied the request for copies of supporting documentation for the appraisals retained in the private appraisers' files. 95-ORD-156.
Finally, Ms. Slaughter argues that if KRS 61.878(1)(f) exempts the requested appraisals, it is "patently unconstitutional." We cannot address, in the context of an open records appeal, a complaint that a statute is unconstitutional. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17.
Because the foregoing is dispositive of this appeal, we need not address other bases cited by the LFUCG in support of its actions relative to Ms. Slaughter's request.
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.