NOT TO BE PUBLISHED
November 21, 1994
IN RE: Larry D. Adams/Kentucky Tourism Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky Tourism Cabinet's denial of Mr. Larry D. Adams's August 4, 1994, open records request to inspect documents regarding a feasibility study/core drill records/reserve evaluation of the David May property, Floyd County, Kentucky, which relate to the proposed golf course expansion at Jenny Wiley State Park.
By letter dated August 9, 1994, Secretary Crit Luallen, on behalf of the Tourism Cabinet, denied Mr. Adams's request stating that "the documents you have requested are not subject to public inspection because they have been prepared on behalf of the Commonwealth for the purpose of determining whether it is feasible for the Commonwealth to acquire the subject property and therefore under KRS 61.878(1)(e), these documents would not be subject to public inspection until the Commonwealth has actually acquired this property."
In his August 26, 1994, letter of appeal to this office, Mr. Adams stated that it was his understanding that the Tourism Cabinet was no longer actively pursuing acquisition of the David May property at this time. He further stated that
core drill records should be considered factual data, absent interpretations and conclusions, and, thus, available for public inspection.
On September 1, 1994, this office requested that the Tourism Cabinet respond to Mr. Adams's arguments by describing the status of the project and to explain how "core drill records fall within the narrow parameters of KRS 61.878(1)(f)."
On September 7, 1994, Secretary Luallen responded by letter with enclosures, and on September 8, 1994, Henry J. Curtis, attorney, Department of Parks, responded by letter with enclosures. These responses are summarized herein as follows:
1. As to the status of the project, the Tourism Cabinet indicated that the Department of Parks and the Department for Facilities Management are currently researching the feasibility of construction of the golf course by use of the David May property; that the Tourism Cabinet is in the preliminary design phase of the project; that the legislature has authorized the Department of Parks to complete design on the project and the golf course expansion is a capital project approved by the General Assembly. However, the David May property has not yet been acquired by the Commonwealth.
2. "Core drill records" provide specific information which could be analyzed to provide a proven or measured coal reserve and reflect the extent, scope and value of reserve mineral holdings of the David May property which is under consideration for acquisition by the Commonwealth. A premature release of the Commonwealth's findings on matters such as core drill records would adversely affect the market value and impede the Commonwealth's ability to acquire the property at a fair market value.
KRS 61.878(1)(e), now codified as KRS 61.878(1)(f), provides in relevant part:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884, and shall be subject to inspection only upon order of a court of competent jurisdiction . . . :
(f) 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.
It is the decision of this office that the Tourism Cabinet's denial of Mr. Adams's request to review all documents relative to the David May property, including feasibility studies, core drill records and reserve evaluations was proper based upon the exemption from public disclosure provided by KRS 61.878(1)(f).
As indicated by the responses submitted by the Tourism Cabinet, the agency has yet to acquire the subject property. Thus, the requested documents are excluded from the application of the Open Records Act under KRS 61.878(1)(f).
The purpose of this exemption is to allow the Commonwealth to make a reasoned judgment as to the fair market value of property and negotiate its purchase. This it is doing through feasibility studies, core drill records, and mineral reserve evaluations. Release of this information prior to acquisition could affect the market value of the property and
frustrate the agency's efforts to negotiate and purchase the property at a fair market price. We therefore conclude the Tourism Cabinet properly withheld the requested public records.
Mr. Adams may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.
James M. Ringo
Assistant Attorney General
Crit Luallen, Secretary
Kentucky Tourism Cabinet
Capital Plaza Tower
500 Mero Street, 11th Floor
Frankfort, KY 40601-1974
Mr. Larry D. Adams, P.E.
Mining Consultant Services, Inc.
340 South Broadway, Suite 200
Lexington, KY 40508-2512