NOT TO BE PUBLISHED
January 8, 1997
In re: Cheri M. Glass/Department of Agriculture
Open Records Decision
This matter comes to the Attorney General on appeal from the Department of Agriculture's denial of the open records request of Ms. Cheri M. Glass, Assistant Editor, Farmland Publications, Inc., to inspect letters of interest received by the Purchase of Agricultural Conservation Easement Corporation (PACE) from farm or landowners or their representatives concerning participation in or support of the purchase of agricultural conservation easements by the PACE board, whether or not these farms were included as pending offers in the federal grant application.
Mr. Mark Farrow, General Counsel, Department of Agriculture, denied Ms. Glass access to these letters of interest, stating that the letters were preliminary correspondence indicating an interest in the purchase of agricultural conservation easement program and therefore, were exempt from disclosure under KRS 61.878(1)(i). In addition, he indicated that, to the best of his knowledge, there were no completed application forms at that time. He further explained that [n]o final action can be taken on a letter of interest. All interested parties will be required to submit a formal application.
In her letter of appeal, Ms. Glass argues:
I think I am entitled to review these documents because the PACE board used these letters of interest or intent to file a federal grant proposal to secure $400,000 to fund the Purchase of Agricultural Conservation
Easement Corporation. These letters were not intended or used as preliminary correspondence, but rather in the place of actual applications during the process of filing the federal grant proposal. Ms. Libby Jones, vice-chairperson of the PACE board, told me by telephone on Nov. 26 that no applications had been filled out and that the letters of intent or interest were used in the place of actual applications. Ms. Jones said that a letter of intent was received for each farm included in the grant proposal and that each letter was read at the Sept. 13 PACE board meeting. Ms. Jones said that each letter was voted on by the board as a matter of policy and that each farm was included in the federal grant proposal. The minutes from the Sept. 13 PACE board meeting (see attached) do not reflect the reading of the letters.
The minutes of the September 13, 1996 PACE board meeting reflect that motions were made, seconded, and carried to accept the farms (those which had submitted the letters of interest involved in the instant appeal) for consideration for purchase (of a conservation easement).
On December 6, 1996, we sent a Notification of Receipt of Open Records Appeal to the Department of Agriculture and enclosed a copy of Ms. Glass's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Farrow provided this office with a response to the issues raised in this appeal. His response states in part:
The items in question are letters of interest received by the PACE Board as it relates to the purchase of conservation easements. Ms. Glass indicates that she believes these letters to be applications, and therefore she is entitled to same. Even if the letters were discussed or acted upon in a PACE meeting, there was no final action as it relates to the parties involved. Each of those persons must file a formal application with the PACE Board. The letters are no more than stated: letters of interest by the parties expressing their interest in the program and as such are in fact preliminary correspondence.
It is the position of the department that the letters of interest fall under KRS 61.878(1)(i) and thus are exempt from disclosure as preliminary documents in which no final agency action, as it relates to the parties involved, has been taken.
To facilitate this office's review, the department furnished us with copies of the letters in question. The copies were not disclosed to other parties, and have since been destroyed. KRS 61.880(2)(c); 40 KAR 1:030 Section 3.
We are asked to determine whether the department's withholding of the letters at issue in this appeal was consistent with the Open Records Act. For the reasons which follow, we conclude that the department improperly denied Ms. Glass's request to inspect the letters of interest.
We have examined the letters which give rise to this appeal. Although we cannot disclose their contents, they can be characterized generally as correspondence from individual farm or landowners or their representatives in which an interest is expressed in pursuing the possibility of the PACE board purchasing an agricultural conservation easement over their respective farms.
KRS 61.878(1)(i) excludes from disclosure:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.
Recognizing that not all writings from individuals to a government agency can be considered correspondence with private citizens, in OAG 90-142, we stated:
Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to take some action, such as take a disciplinary action against a licensee, or enter into a government contract based on bids. In each instance, disclosure is mandatory upon request, after the final governmental action.
Although OAG 90-142 is distinguishable on its facts, we believe that the reasoning of that opinion can be extended to the instant appeal. Our review of the letters of interest indicates that they were written with the expectation that the board would take some action. At the September 13, 1996 PACE board meeting, the board voted to accept for consideration, the respective farms which had submitted the letters of interest, for the purchase of a conservation easement. To this extent, we conclude the agency took final action by formally accepting the letters of interest for consideration. Accord, OAG 90-7 (where we held that a contractor lost any character he had as a private individual when he corresponded with a public agency regarding the administration of his contract with the agency).
By contrast, in OAG 90-13, we held that survey forms voluntarily submitted by private businesses at the request of a government agency did not have to be disclosed, as they fell under the classification of private correspondence. Such surveys were not submitted with an expectation that the agency would rely upon them to take some particular action.
Insofar as the writers of the letters expected the PACE board to rely on them to take some action, they cannot be considered correspondence with private individuals. Moreover, since the board acted upon them, they cannot be considered preliminary.
For these reasons, we conclude the letters of interest do not constitute correspondence with private individuals to be excluded from disclosure as contemplated by KRS 61.878(1)(i). Accordingly, the department improperly withheld disclosure of the letters and they should be made available for Ms. Glass's inspection.
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
Cheri M. Glass
Farmland Publications, Inc.
P. O. Box 145
Columbia KY 42728
Billy Ray Smith
Department of Agriculture
7th Floor, Capital Plaza Tower
Frankfort KY 40601