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 Kentucky Transportation Cabinet violated the Open Records Act in the disposition of Courier-Journal reporter R. G. Dunlop's February 2, 2005 request for "copies of any and all written purchase offers made by the Kentucky Transportation Cabinet to property owners whose land, businesses and/or homes have been the subject of condemnation actions filed by the Cabinet in connection with the KY 213 project in Powell County." For the reasons that follow, we find the Cabinet did not violate the Act in denying Mr. Dunlop access to that portion of the purchase offers which would disclose the monetary values of real estate appraisals under authority of KRS 61.878(1)(f). However, other information in the offers to purchase, that would inform the public of what the Cabinet is doing in regards to a project and that does not disclose the appraised values or the contents of the appraisal or the terms and conditions of a particular offer, would be subject to disclosure.
By letter dated February 4, 2005, Charles K. Hollan, Commissioner, Department of Administrative Services and Custodian of Records, on behalf of the Cabinet, denied Mr. Meyer's request. Citing KRS 61.878(1)(f) as authority for the nondisclosure, Mr. Hollan explained that "as of this date there are currently still eleven condemnations pending on this project."
As a result of the Cabinet's denial, R. Kenyon Meyer, counsel for Mr. Dunlop and the Courier-Journal, initiated the instant appeal, arguing that KRS 61.878(1)(f) does not apply to written purchase offers, which are different from real estate appraisals, engineering or feasibility estimates, and evaluations made by or for a public agency relative to acquisition of property.
After receipt of notification of the appeal and a copy of the letter of appeal, J. Todd Shipp, Assistant General Counsel, Transportation Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Shipp advised in relevant part:
Contrary to Mr. Meyer's assertions, the real estate appraisal and the letter of written purchase offer is exactly the same. The letter of purchase [offer] reflects and recites exactly within it the appraised values. The Transportation Cabinet does not make this figure up or make a good guess. The offer is exactly what the appraised value states. The Transportation Cabinet does not offer more or less than the appraised value. To define or attempt to argue this letter of purchase offer beyond the exception as outlined in KRS 61.878(1)(f) is simply misguided.
. . .
The very exception cited above refers specifically to the contents of real estate appraisal until all of the property has been acquired. It is very easy to understand the need for the exception. The General Assembly recognized that the public agency should be free to purchase and exercise its right of condemnation without having to negotiate against itself. All properties stand on their own. But to disclose the purchase offers while parcels remain unpurchased would defeat any ability of the public agency to approach any condemnation action independently and without fear of having an offer or purchase price of another parcel within the project area held up to them as a threshold to meet or surpass.
. . .
To share with Mr. Dunlop the letters of purchase offers would be sharing with the public contents of real estate appraisals at a time when all parcels have not been obtained. This would clearly defeat the intent of the exception as codified by the Kentucky Legislature at 61.878(1)(f). As noted in 96-ORD-30 "these documents constitute or are an integral part of real estate appraisals, engineering or feasibility estimates and evaluations." The purchase offer and appraisal value are the very heart of this exception and as such this Appeal should be denied in its entirety.
Along with his response, Mr. Shipp attached an affidavit from Tom Kerns, (Acting) Director of Right Away, Division of Right of Way, Kentucky Transportation Cabinet. Mr. Kerns, in relevant part, stated:
4. That in the process of real estate appraisal condemnation proceedings, the Transportation Cabinet obtains a real estate appraisal on each parcel within the project area;
5. Based upon the real estate appraisal, a letter of purchase is sent to that property owner containing the appraiser's amount. This document is not shared with the public or with other affected land owner. The purchase offer is a recapitulation of the appraisal amount, and they are therefore one and the same.
6. That at present there are currently eleven (11) condemnations pending on the KY 213 project in Powell County.
In a reply to Mr. Shipp's response, Mr. Meyer, in addressing the Cabinet's position that the real estate appraisals and the offers to purchase are one in the same, argued:
. . . This is not true. The purchase offer is not simply a copy of the real estate appraisal that the Cabinet mails to the property owner. Rather, at most, a purchase offer may contain the dollar figure formulated by the real estate appraisal. However, contrary to Mr. Shipp's contention, the Cabinet's standard forms and guidelines to purchase offers do not appear to require purchase offers to be based on an appraisal at all. ( See "Specific Responsibilities of Negotiators", attached hereto as Exhibit 1 ) ("If the offer was based on an appraisal. . ."). Moreover, the Cabinet specifically contemplates the revision of purchase offers - as distinguished from the revision of real estate appraisals. ( Id. ) ("If the offer of just compensation is revised for any reason . . ."). Likewise, written purchase offers are to include a variety of information such as the purpose of the project, a description of the area to be acquired, an offer of compensation, plan sheets, a memorandum of understanding, and a deed. ( Id. )
Moreover, KRS 61.878(4) requires the Cabinet to disclose redacted versions of public records which contain some excepted information and some non-excepted information. Here, the Cabinet simply refused to disclose the written purchase offers. Thus, even under the Cabinet's argument that written purchase offers are excepted for containing the contents of real estate appraisals, the Cabinet nonetheless violated the Open Records Act by failing to provide redacted copies of the written purchase offers.
We are asked to determine whether the Cabinet's denial of the request for copies of the offers to purchase violated the Open Records Act. To the extent the offer to purchase contains information that would reflect the amount or contents of the real estate appraisal, that information could clearly be withheld from disclosure under authority of KRS 61.878(1)(f). However, other information in the offers to purchase, that would inform the public of what the Cabinet is doing in regards to a project and that does not disclose to the public the appraised values or the contents of the appraisal or the terms and conditions of a particular offer, would be subject to disclosure.
In denying Mr. Dunlop's request for the written purchase orders, the Cabinet relied on KRS 61.878(1)(f) authorizing 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.
Analyzing the exemption in some depth, in 97-ORD-171 this office 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.
97-ORD-171, p. 2.
To the extent the offers of purchase contain information that would reflect the amount, values, or contents of the real estate appraisals or the terms and conditions of any specific offer, that information could be withheld from disclosure under authority of KRS 61.878(1)(f) until all the parcels in the project are acquired. To do otherwise would defeat the purpose of the exemption. 97-ORD-171; OAG 90-15.
However, information in the offers of purchase that would inform the public as to what the Cabinet is doing relative to a project, such as the location and description of the project, that does not reflect the appraised value or contents of the appraisal, and that is not exempt under another applicable exemption set forth in KRS 61.878(1), would be subject to disclosure. 1 Accordingly, pursuant to KRS 61.878(4), the Cabinet is obligated to redact those portions for which it articulates a written statutory basis and explanation under KRS 61.878(1)(f) and release the remainder of the offers of purchase.
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.
R. Kenyon MeyerDinsmore & Shohl LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Charles K. HollonCommissionerDepartment of Administrative ServicesTransportation Cabinet200 Mero StreetFrankfort, KY 40622
James WoodGeneral CounselOffice of Legal ServicesKentucky Transportation Cabinet200 Mero StreetFrankfort, KY
Todd ShippOffice of Legal ServicesKentucky Transportation Cabinet200 Mero StreetFrankfort, KY 40622
Footnotes
Footnotes
1 In 96-ORD-30, the request was for copies of records including "unaccepted offers to purchase from the Transportation Cabinet, counter offers or responses to purchase, accepted offers to purchase, memorandums of agreements, memorandums of understandings, maps, drawings, and text which describe what was purchased and what each individual purchase cost." We held that because the Cabinet, in its response failed to assert or establish that the requested documents were an integral part of the class of documents exempted from disclosure under KRS 61.878(1)(f), it failed to substantiate that the requested records were exempt under the cited exception and directed the release of those records.