NOT TO BE PUBLISHED
January 29, 1996
In re: James M. Ellis/Transportation Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Transportation Cabinet's denial of Mr. James M. Ellis's open records request to inspect certain Cabinet records relating to various parcels of land for Project Number FSP 106 0055.
Specifically, Mr. Ellis requested to inspect and receive copies of the following Cabinet records:
Therefore, under the Open Records laws, KRS 61.870 through 61.884, please provide me with copies of those documents in possession of the Department of Transportation which are open to the public under these statutes and which deal with the Commonwealth of Kentucky acquiring the parcels 23 and 23-A (Shelby County Clerk's office Deed Book 0316, page 0387) and parcels 83 and 83A (Shelby Co. Deed Book 0316, page 0236) for Project No. FSP 106 0055. Copies of the first pages of these deeds of conveyance are attached. This request includes, but is not limited to, 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.
If the records are numerous and per KRS 61.872(3)(b), please notify me as to the cost of mailing and fees for copying as I hereby request that the copies be mailed to me at the address given at the top of this letter.
This request is not for a commercial purpose.
Mr. Jon D. Clark, Commissioner, Department of Administrative Services and Custodian of Records, responded to Mr. Ellis's request, on behalf of the Cabinet, stating:
This is in response to your Open Records Request of October 6, 1995, relating to various parcels for Project Number FSP 106 0055.
Please be advised that your information request was forwarded to the Division of Right-of-Way for reviewing. According to that Division this project is still active; therefore, we must deny your request for information at this time. Based on KRS 61.878(1)(f) of the Open Records Law, `The content of real estate appraisals, engineering or feasibility estimates and evaluation made by or for a public agency relative to acquisition of property, until such time as all of the property has been acquired' is exempt from public inspection.
This denial is also substantiated by the following Office of the Attorney General Opinions (OAG):
OAG 85-79 - A public agency may deny requests to inspect records relating to the acquisition of property for a right of way project, including the relocations assistance payments relative thereto, until such time as all of the property involved in the project has been acquired.
OAG 89-42 - Records exempted from public inspection by KRS 61.878(1)(f) 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 conveyances having been delivered.
OAG 76-656 - Real estate appraisals on a public project need not be disclosed until all of the property has been acquired.
In his letter of appeal to this office, Mr. Ellis states, in part:
My request of October 6 was for records that are open for examination as allowed by KRS 61.878(1)(f). No request was made for contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisiton of property. The Transportation Cabinet denied copies of all records, even those that are available to the public in other governmental units. For example, copies of recorded deeds of conveyance are available to the public at the appropriate County Clerk's office. The Transportation Cabinet holds the original deed.
Had the legislature wished to exempt all records, it could have done so by simply saying that all records for the acquisition of property are exempt until all the properties are acquired. The legislature exempted only those items named in KRS 61.878(1)(f). KRS 61.871 requires that the exceptions named in KRS 61.878 be strictly construed.
Strict construction of KRS 61.878(1)(f) required that the Transportation Cabinet determine which documents were exempt and which were not. After such determination, the Transportation Cabinet was required to provide copies of the records not excepted. Documents that describe the final action on a property were not exempted. Copies of the accepted offers to purchase, any accepted memorandums of agreements, and deeds of conveyance should have been provided for the requested parcels.
For the reasons which follow, we conclude that the response of the Cabinet was procedurally deficient in that it failed to briefly explain how KRS 61.878(1)(f) applied to the documents withheld from Mr. Ellis's inspection as required by KRS 61.880(1). Thus, its response was inconsistent with and in violation of the Open Records Act.
In his request, Mr. Ellis asks for copies of those documents in possession of the Department of Transportation which are open to the public under the Open Records relating to certain parcels of property involved in Project No. FSP 106 0055, and not otherwise exempt under KRS 61.878(1)(f).
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of KRS 61.880 requires that if the public agency denies all or any portion of the request, the written response must include a statement of the specific exception authorizing the withholding and a brief explanation of how the exception applies to the records withheld. Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
The Cabinet's response was procedurally deficient in that it did not explain how the cited exception applied to the requested documents. Although Mr. Ellis's request was somewhat broad, we do not believe that it was so ambiguous that it precluded the custodian from determining the identity of the records sought and providing a brief explanation as to how KRS 61.878(1)(f) applied to the records described in his request.
In 92-ORD-1374, this office determined that the Cabinet improperly relied on KRS 61.878(1)(e) [now codified as KRS 61.878(1)(f)] in denying an open records request to inspect the Cabinet's settlement agreement with a property owner in a condemnation case. In that decision, this office stated:
At KRS 61.871 the General Assembly has recognized `that free and open examination of public records is in the public interest.' Thus, `the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.' KRS 61.878(1)(e) [now codified as KRS 61.878(1)(f)] authorizes the nondisclosure of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to the acquisition of property. This exception does not expressly permit an agency to withhold a settlement agreement reached by the parties in a condemnation action.
Thus, following the direction of 92-ORD-1374 that the exemptions in KRS 61.878(1) must be strictly construed, the Cabinet cannot withhold disclosure of the records requested by Mr. Ellis under authority of KRS 61.878(1)(f) unless the documents requested by Mr. Ellis constitute or are an integral part of real estate appraisals, engineering or feasibility estimates and evaluations.
The Cabinet in its response did not assert that the documents requested by Mr. Ellis were an integral part of the class of documents exempted from disclosure under KRS 61.878(1)(f). Thus, the Cabinet's response was insufficient to substantiate its position that the requested records were exempt under the cited exception. 92-ORD-1374.
Our decision is limited to the facts presented in this appeal and turns on the Cabinet's failure to sustain its burden of proof to justify the withholding of public records. Accordingly, due to the Cabinet's failure to meet this burden, we are left with no alternative but to direct the release of the requested records to Mr. Ellis.
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.
A. B. CHANDLER III
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Jon D. Clark
Department of Administrative Services
and Custodian of Records
State Office Building
Frankfort, Kentucky 40601
James M. Ellis
734 Booker Pike
Shelbyville, Kentucky 40065