NOT TO BE PUBLISHED
June 7, 1994
IN RE: Dick Moore/City of Owensboro
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Dick Moore in connection with his attempts to obtain copies of various documents from the city of Owensboro.
In a letter to the city clerk, dated March 16, 1994, Mr. Moore made the following requests for information:
1. The real estate apprisal [sic] on city owned property at 4th & St. Ann St., and amount paid.
2. 92 real estate apprisal [sic] by Geo. Cox on Linda and Frank Hayden or Mrs. Franks property 121 E. 2nd.
The city attorney and the city clerk replied to Mr. Moore in a letter dated March 18, 1994, and advised him as follows:
In response to your open records request dated March 16, 1994, please be advised that the public documents you seek to inspect are exempt from inspection under the authority of KRS 61.878(1)(e), inasmuch as the property sought by the city has not been acquired to date. The property will not be 'acquired' until we are in possession of a properly executed deed of conveyance transferring fee simple title to the property, to the city.
Furthermore, the city is seeking to condemn a portion of the property at 121 East Second Street which is owned by Frank and Linda Hayden, for the River Park parking garage project. This appraisal was prepared at the request of the city in anticipation of condemnation litigation involving this property and, therefore, same is exempt from public inspection under the authority of KRS 61.878(1)(i) and/or (k).
In his letter of appeal to this office, received March 20, 1994, Mr. Moore said that his first request was ignored and his second request was denied for erroneous reasons.
On May 13, 1994, the undersigned Assistant Attorney General talked by telephone with David C. Fowler, Esq., City Attorney of the city of Owensboro, to determine the city's current position relative to the issues raised in Mr. Moore's appeal. Mr. Fowler stated that, as to the first issue, it is his understanding that Mr. Moore has already seen the appraisal but, if he has not seen it yet, he may see it now. As to the second issue, Mr. Fowler said that part of the property at 121 East Second Street is involved in a condemnation proceeding and a trial will probably be scheduled for sometime this summer.
In view of the city's present position, only one issue needs to be decided in this appeal and that concerns the availability of the appraisal material related to the condemnation or eminent domain proceeding.
Among the statutorily recognized exceptions to public inspection is KRS 61.878(1)(e) which permits the following documents to be excluded from public inspection under the following circumstances:
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 OAG 89-42, copy enclosed, at page four, we dealt with KRS 61.878(1)(d), now codified as KRS 61.878(1)(e), and said in part as follows:
It is the opinion of the Attorney General that the records exempted from public inspection by KRS 61.878(1)(d) [now KRS 61.878(1)(e)] are so exempted until '... all of the property has been acquired...' through completed condemnation proceedings or completed negotiations and purchase, with final consideration having been determined and deeds of conveyance having been delivered. Such records are of course subject to inspection upon order of a court of competent jurisdiction.
In addition, in OAG 91-83, copy enclosed, at page three, this office said in part:
Mr. Baker's arguments mirror those of the requesting party in OAG 89-42. He maintains that the Cabinet improperly defines the word 'acquire' to mean not only possession of the land, but 'title to the property and the final resolution of each of the lawsuits which will determine compensation due all the landowners.' OAG 89-42 at p. 2. This argument was rejected in OAG 89-42 where we held that denial of a request to inspect records relating to the acquisition of property for a road construction project was proper under KRS 61.878(1)(d) until all of the property had been acquired through completed condemnation proceedings or completed negotiations and purchase, with final consideration having been determined and deeds of conveyance having been delivered. OAG 89-42 citing OAG 85-79 and OAG 84-90.
Thus, relying upon the above-mentioned opinions, it is our decision that the city acted properly when it denied access to the appraisal material relating to a condemnation or eminent domain proceeding to be scheduled for trial in the next few months as the denial is supported by the exception to public inspection set forth in KRS 61.878(1)(e).
The requesting party, Mr. Dick Moore, may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any action filed against the adverse party pursuant to KRS 61.880(3), but he shall not be named as a party to this action or in any subsequent proceedings.
THOMAS R. EMERSON
ASSISTANT ATTORNEY GENERAL
Copies of this decision
have been mailed to:
2116 Griffith Place West
Owensboro, Kentucky 42301
David C. Fowler, Esq.
City Attorney, City of Owensboro
P.O. Box 847
Owensboro, Kentucky 42302