TO BE PUBLISHED
July 11, 1994
IN RE: Dick Moore/City of Owensboro
OPEN RECORDS DECISION
Mr. Dick Moore challenges the City of Owensboro's response to his February 16, 1994, request to inspect the "City of Owensboro appraisal by Galloway on Owensboro Museum of Science and History property at 2829 South Griffith Avenue." On behalf of the City, Mr. David Fowler, City Attorney, denied Mr. Moore's request, advising him that "[r]egardless of the method of sale [of the property], it would be extremely unwise and inappropriate to publicly disclose the results of this appraisal prior to the sale, since disclosure could jeopardize the City's efforts to obtain the highest price for this property." In support of this position, Mr. Fowler relied on KRS 61.878(1)(e) and (i). In addition, he argued that Mr. Moore is a party to a legal action against the City, the Museum, and Galloway Appraisals, and that the appraisal is not discoverable. He advised Mr. Moore that the City would not authorize disclosure of a record under the Open Records Act which is not discoverable under the Rules of Civil Procedure governing pretrial discovery.
In his letter of appeal to this Office, Mr. Moore questions how disclosure of the appraisal at this juncture would jeopardize the City's efforts to obtain the highest price for the property when the amount of the appraisal was published in the Messenger-Inquirer on March 5, 1994, and again on March 8, 1994. He asks that this Office rule that the City's reliance on KRS 61.878(1)(e) and (i) was misplaced. For the reason set forth below, we conclude that although the City improperly relied on KRS 61.878(1)(e) in denying Mr. Moore's request, it properly withheld the appraisal pursuant to KRS 61.878(1)(i).
KRS 61.878(1)(e) exempts 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 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.
Mr. Moore does not seek access to the contents of real estate appraisals relative to the acquisition of property. Rather, he asks to inspect the contents of a real estate appraisal relative to the sale of city property. KRS 61.878(1)(e) therefore has no bearing on his request, and cannot be invoked as the basis for denial.
In a letter dated March 21, 1994, Mr. Fowler argues that "[t]he same logic that would apply to a purchase, would also apply to the sale of property, and since cities frequently sell as well as buy property, it makes absolutely no sense to apply the exemption to 'acquisition' of properties only." We do not agree.
In OAG 82-450, we were confronted with a similar issue. There, the requester sought access to the "Development Potential Analysis" prepared by the Real Estate Research Corporation for Jefferson County. Relying on KRS 61.878(1)(e), the County denied the request. This Office rejected the County's invocation of KRS 61.878(1)(e), observing:
It is contended . . . that the release of the document to the public would adversely affect the price which the county may obtain
for the property. For that reason, [the County] relied on KRS 61.878(1)(e) which has to do with appraisals made when the county is purchasing property. Under the rules of statutory construction we believe that since exemption (e) expressly mentions appraisals and feasibility estimates and evaluations relative to the acquisition of property we could not hold the document exempt from public inspection under that provision.
OAG 82-450, p. 2. By its express terms, the exception is limited to acquisition of property, which is not, in our view, synonymous with disposition of property. Simply stated, a sale is not equivalent to a purchase. See, Webster's II University Dictionary (1988) defining acquisition as "[t]he act of acquiring; something acquired." Noting that in reviewing an open records appeal, this Office is not limited to only the exception which is cited by the agency in denying access to the record, but may consider all of the exceptions listed in KRS 61.878, we held that the requested record was exempt under KRS 61.878(1)(i). We believe that that opinion is controlling.
KRS 61.878(1)(i) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
As interpreted by this Office, such records are only subject to public inspection, in the absence of a court order, if they constitute notice of a final action of the public agency, or are incorporated into the public agency's final report or final decision on the matter. In his March 21 letter, Mr. Fowler notes that "an appraisal is more than just the dollar amount itself." Continuing, he observes:
The fair market value is based on certain assumptions and various methodologies commonly known as the cost, income and comparable sales approaches. The appraisal contains professional opinions regarding the relative merits of each acceptable method for determining fair market value. It is not in the City's interest to disclose the methodology or the final product (fair market value of property) publicly until the
property is sold. Appraisals often contain opinions and recommendations as to the highest and best use of the property, both of which impact the property's market value and the strategy employed to sell it.
In his view, "any appraisal conducted at the request of a potential seller, prior to an anticipated sale, is preliminary." Mr. Fowler acknowledged the City's duty to release the contents of the appraisal "at such time as the property is sold or purchased."
We concur. As in OAG 82-450, p. 2, the document at issue in this appeal "is almost entirely opinion and recommendations." While it is a final report of the company employed by the City of Owensboro to appraise the subject property, it is preliminary until the property is finally purchased. We therefore conclude that the City properly withheld the requested record.
Mr. Moore 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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. David Fowler
City of Owensboro
P. O. Box 847
Owensboro, KY 42302
Mr. Dick Moore
2116 Griffith Place West
Owensboro, KY 42301