Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Transportation Cabinet violated provisions of KRS 61.870 to 61.884 in partially denying Clarence H. Hixson's March 27, April 6, and April 16, 2012, requests for records relating to the purchase of the Drumanard Estate ("estate") from the Soterion Corporation ("Soterion") for $ 8.3 million as part of the Louisville-Southern Indiana Ohio River Bridges Project ("project"). Although the record on appeal supports the Cabinet's invocation of KRS 61.878(1)(f) to deny Mr. Hixson's request for "the real estate appraisal relied upon by the Cabinet to determine the fair price of the property," until such time as all of the property needed for the project has been acquired, the record on appeal does not support its general denial of his remaining requests based on the argument that the requests fail to "identify documents with enough specificity to allow Cabinet personnel to identify and retrieve responsive documents."
On March 27, Mr. Hixson asked "to inspect and copy" records; which we summarize and paraphrase for brevity as follows:
. demonstrating that the Cabinet complied with specifically identified federal laws 1 in the acquisition of the property and that it obtained approval from the Federal Highway Administration;
. demonstrating that the Cabinet conducted an investigation to "ascertain the existence of any conflict of interest or self dealing" in relation to the purchase and Soterion's shareholders, partners, silent partners, owners, beneficiaries, or officers;
. relating to the purchase price of the estate, including the appraisal upon which the Cabinet relied;
. relating to when and how Soterion learned that the east end bridge approach alternative requiring the acquisition of the estate ("I5A alternative") had been chosen.
The Cabinet denied 12 of the 13 parts of Mr. Hixson's request, eleven of them because:
it is incumbent on the requester to identify records sought with reasonable specificity in order for the agency to locate those documents sought to be reviewed. The Transportation Cabinet is not required to provide information, create a record, perform research, answer questions, or compile lists to satisfy your [Mr. Hixson's] request. [Y]ou have not specified any document that you wish to receive, and satisfying this request would require much speculation, research, and guessing on the part of the Cabinet.
Additionally, the Cabinet relied on KRS 61.878(1)(f) in denying Mr. Hixson's request for the appraisal upon which it relied, explaining that "[a]ll property has not been acquired for the project . . . ."
Mr. Hixson thereafter submitted an eight part amended request in an attempt to provide clarity, suggesting that any records access dispute could be avoided by making the Soterion background file available for inspection. Barring this, he requested to inspect records:
. containing the words "Soterion Corporation;"
. identifying Soterion's owners, members, and shareholders;
. pertaining to the land title transaction contract for the sale of the estate and related transactions such as the mortgage from Stockyards Bank secured by the same property;
. containing the words "Title VI," or indicating that the Cabinet complied with the Civil Rights Act of 1964.
The Cabinet responded to Mr. Hixson's April 6 amended request by providing him with the land transaction contract and a Title VI Implementation Plan Update that related to the Cabinet as a whole, but not to the bridges project specifically, and advising him that no bridges project specific record exists. The Cabinet referred him to the Secretary of State's website for organizational information relating to Soterion but denied his remaining requests, again asserting that they were "simply not specific enough to allow our personnel to identify and retrieve responsive records."
Mr. Hixson submitted a second amended request to inspect records of the Cabinet on April 16. This time, he suggested locations in which responsive records might be located, including records maintained by right of way agents Linda A. Karr and Tom Kerns specifically, and records relating to 05-01118.00LS1ORB Section 4, East End Bridge Approach generally. The Cabinet denied this request because it did not "identify documents with enough specificity to allow Cabinet personnel to identify and retrieve responsive documents." Nevertheless, the Cabinet concluded:
We know of no document on file with the Transportation Cabinet which would identify all of the shareholders, partners, and ultimate beneficiaries who will receive a share of the proceeds from the $ 8.3 million public purchase of the Drumanard property.
Mr. Hixson initiated this appeal following a last failed effort to secure the right to inspect records relating to: 1) Soterion's president and the Cabinet's knowledge of his legal problems and the corporation's legal problems; 2) whether this knowledge affected the price paid to Soterion; 3) the Cabinet's decision not to obtain a list of shareholders, beneficiaries, and officers from Soterion to satisfy Mr. Hixson's request; and 4) any legal opinion that the Cabinet could properly pay $ 1.25 million above the assessed value for the property.
In supplemental correspondence directed to this office, the Cabinet cited seven open records decisions, the most recent of which was issued in 2008, for the proposition that "it is incumbent on the requester to identify records sought with reasonable specificity in order for the agency to locate those documents sought to be reviewed." The Cabinet characterized Mr. Hixson's request as "a deposition rather than a tailored, specific request for records," but responded to the claim that it failed to properly vet Soterion:
[The Cabinet] is mandated and obligated by law to engage in honest arms length transactions with the legal title holder of property it acquires for right of way use. Soterion Corporation, the property owner, is a duly authorized Indiana corporation recognized as a functioning legal entity pursuant to the laws of the Commonwealth of Kentucky. [The Cabinet] is not mandated by law to ignore the corporate form and deal with a corporation's officers and shareholders on an individual basis. Soterion provided a corporate resolution authorizing either one of two officers to act on behalf of the corporation with respect to the sale of the Drumanard property.
Continuing, the Cabinet restated its denial of Mr. Hixson's request to inspect the real estate appraisal for the estate, pursuant to KRS 61.878(1)(f), until all property for the project has been acquired. In closing, the Cabinet observed:
[The Cabinet] has made every effort to meet Mr. Hixson's requests while continuing preliminary efforts to ready this project for letting. The majority of material and documents surrounding this project are still in preliminary status. 2 [The Cabinet] cannot perform such broad, generalized, sweeping searches or open all of its files to random searches in hopes it will harvest something for [Mr. Hixson]. The Open Records law was not designed for this and most certainly was not designed to thwart [the Cabinet] in conducting its business.
While we affirm the Cabinet's reliance on KRS 61.878(1)(f) to support nondisclosure of the real estate appraisal, we find that it misstates the Open Records Law as it relates to the agency's duty when presented with a request that is "adequate for a reasonable person to ascertain the nature and scope" of that request. Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008).
In Commonwealth v. Chestnut , above, the Court assessed the adequacy of an inmate request for his "inmate file excluding any documents that would be considered confidential." Rejecting the agency's claim that the request was "too broad and overly vague," and that the inmate "must describe the record with reasonable particularity, " Chestnut at 658, the Court observed:
The General Assembly enacted the Kentucky Open Records Act, KRS 61.870, et seq. , because it determined that "free and open examination of public records is in the public interest[,]" even if "such examination may cause inconvenience or embarrassment to public officials or others." [Footnote omitted.] And so the General Assembly decreed that with few limited exceptions, "[a]ll public records shall be open for inspection by any person . . ." [Footnote omitted]
The General Assembly's use of the broadly inclusive "any person" demonstrates its intention not to limit the class or type of persons entitled to inspect public records. In fact, the General Assembly used "any person" again in KRS 61.872(2), which provides that "[a]ny person shall have the right to inspect public records. " . . . [T]he open records laws identify no class or type of persons, even prisoners, who are held to a more stringent standard when submitting open records requests. [The agency] bears the burden to rebut the strong presumption in favor of disclosure. [Footnote omitted.]
Chestnut at 660.
Turning next to the adequacy of the request, the Court opined:
[N]othing in KRS 61.872(2) 3 contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected." We must interpret statutes as written, without adding any language to the statute, even in open records cases. [Footnote omitted.] And it is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described.
. . .
Because we lack the power to rewrite the open records act, we cannot add a particularity requirement where none exists. Chestnut described the records he wanted to see-the content of his inmate file. It appears obvious to us that Chestnut's request was adequate for a reasonable person to ascertain the nature and scope of Chestnut's open records request. [Footnote omitted.] He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen. [Footnote omitted.]
Chestnut at 661.
The Court contrasted the adequacy of Chestnut's request under the KRS 61.872(2) requirement with a request to access records by receipt of copies through the mail under the KRS 61.872(3)(b) 4 requirement, noting the absence of a particularity requirement in the former and the presence of a particularity requirement in the latter, and expressed its agreement with the District Court of Rhode Island's "astute holding" that an open records request:
should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure. Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal , 602 F.2d 1010 (1st Cir. 1979).
Chestnut at 662.
Judged by the standard for onsite inspection found at KRS 61.872(2), as construed by the Supreme Court in Chestnut , above, Mr. Hixson's requests were "adequate for a reasonable person to ascertain [their] nature and scope" and thereafter locate, and produce for inspection, the records sought. He asked to inspect records relating to the Cabinet's purchase of the Drumanard Estate with an emphasis on records demonstrating what measures the Cabinet took to insure compliance with applicable state and federal laws in the purchase, what efforts were made to investigate or "vet" Soterion Corporation to eliminate the possibility of conflicts of interest or self-dealing in the purchase, and what factors were considered in arriving at the purchase price. It is clear that no single record is responsive to these requests. It is equally clear that producing records that are responsive will require considerable time and manpower. Nevertheless, as the Supreme Court recognized in Chestnut , this "obvious fact . . . is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden," id. at 665, and the Cabinet "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. at 666. Mr. Hixson "described the records he wanted to see" in such a way that "a reasonable person [could] ascertain the nature and scope of [that] request." Id. at 661. As noted above, "[h]e was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen." Id. Mr. Hixson requested to inspect records relating to the Cabinet's purchase of the Drumanard Estate and his request should have been assessed under the less stringent standard found at KRS 61.872(2) as interpreted by the Kentucky Supreme Court in Chestnut .
The 2008 open records decision upon which the Cabinet relies is particularly relevant to our conclusion. There, we concluded that although the request to the Transportation Cabinet did not precisely describe the records to which access was sought by receipt of copies through the mail, the Cabinet could not simply deny the request but was instead required to permit the requester to conduct an onsite inspection "through public records on his own time . . . ." 08-ORD-269, p. 8, citing OAG 76-375, p. 3. 08-ORD-269 thus stands for the proposition that a requester must be permitted to review nonexempt public records in suitable facilities provided by the agency if he cannot precisely describe the record he wishes to access, and not for the proposition that the agency is relieved of its statutory duties in such cases. However "tedious and time-consuming [the] work," the Cabinet is "obligated to sift through any requested materials in order to determine which documents (or portions of documents)" must be redacted or withheld entirely and which documents must be disclosed to Mr. Hixson for onsite inspection. Chestnut at 665.
We find no error in the Cabinet's denial of Mr. Hixson's request to inspect "the real estate appraisal that [the Cabinet] relied upon to determine the fair price of the property . . . ." KRS 61.878(1)(f) authorizes 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. The law of eminent domain shall not be affected by this provision[.]
Numerous open records decisions issued by this office confirm the Cabinet's position relative to nondisclosure of the Drumanard Estate appraisal until all of the thirty-five remaining parcels required for the project have been acquired. See authorities cited in 05-ORD-043 (enclosed). Moreover, the Cabinet fully addressed our KRS 61.880(2)(c) 5 questions concerning the application of the exception to this unique property. KRS 61.878(1)(f) cannot, however, be construed to extend to records relating to the acquisition of the Drumanard Estate other than the "contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for" the Cabinet. See 99-ORD-215, enclosed (determining that Transportation Cabinet interpreted KRS 61.878(1)(f) too broadly in denying request for map of a projected bypass project); see also 92-ORD-1374 and 96-ORD-2. The Transportation Cabinet may not withhold records relating to the purchase of the estate, under the guise of KRS 61.878(1)(f), unless the records fall squarely within the parameters of that exception.
Nor can the Cabinet belatedly, and indirectly, invoke KRS 61.878(1)(i) and (j) to support nondisclosure of records related to the completed purchase of the Drumanard Estate. Those exceptions authorize nondisclosure of:
(i) [p]reliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; and
(j) [p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In its supplemental response, the Cabinet asserted that "[t]he majority of material and documents surrounding this project are still in the preliminary status." This statement is true as to the Louisville-Southern Indiana Ohio River Bridges Project as a whole. It is not true as to the purchase of the Drumanard Estate. On April 30, 2012, the Cabinet and Soterion Corporation executed a deed transferring ownership of the estate from Soterion to the Cabinet, recording the deed in the Office of the Jefferson County Clerk at DB 9879 PG 018. To the extent records relating to the purchase formed the basis of the purchase, they forfeited their preliminary characterization. City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992). Whatever the status of the Bridges Project, Mr. Hixson is entitled to inspect all nonexempt records relating to the purchase of the Drumanard Estate that are maintained by the Cabinet and responsive to his requests, KRS 61.878(1)(i) and (j) notwithstanding, under 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.
Distributed to:
Clarence H. HixsonRebecca GoodmanJ. Todd Shipp
Footnotes
Footnotes
1 For example, Mr Hixson specifically cited than Clean Air Act project level conformity analysis and Title VI of the Civil Rights Act of 1964
2 The Cabinet intimates on appeal, for the first time, that the preliminary documents exceptions, KRS 61.878(1)(i) and (j), may shield the requested records from disclosure.
3 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected . The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(Emphasis added.)
4 KRS 61.872(3) provides:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
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5 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.) In an attempt to better understand if the rationale supporting invocation of KRS 61.878(1)(f) would be promoted by the nondisclosure of a real estate appraisal relating to a property listed on the Historic Register with few, if any, "comparables," we posed a series of questions to the Cabinet aimed at facilitating our review.