TO BE PUBLISHED
95-ORD-98
July 7, 1995
In re: Chris Dyke/Department of Agriculture
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records by Chris Dyke, a field representative for the Kentucky Association of State Employees, to the Department of Agriculture on April 11, 1995. Those records are identified as the proposals and contracts for the report prepared for the Department by Andersen Consulting and entitled "Growing for the Future." On behalf of the Department of Agriculture, Donna G. Dutton, General Counsel, denied Ms. Dyke's request. Relying on KRS 61.878(1)(f), she explained that the records she requested "contain feasibility studies and estimates for property that has not yet been acquired."
The question presented in this appeal is whether the Department of Agriculture properly relied on KRS 61.878(1)(f) in denying Ms. Dyke's request. For the reasons set forth below, we conclude that the Department's reliance on this exemption was misplaced.
KRS 61.878(1)(f) 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 law of eminent domain shall not be affected by this provision.
"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; OAG 91-117; OAG 91-159; 92-ORD-1374; 94-ORD-74; 94-ORD-85; 94-ORD-137.
In a follow-up letter to this office dated May 17, 1995, Ms. Dutton elaborated on the Department of Agriculture's position. She explained:
The proposal presented to this Department by Anderson [sic] Consulting entitled "Kentucky Department of Agriculture Growing for the Future" is a strategic plan which will involve technology restructuring, re-engineering, systems development, systems integration and process development for all areas of the Department of Agriculture. There are six phases to this implementation plan that will spread cost over several years and reduce the impact of change on the organization.
Ms. Dutton argued that the strategic plan is a feasibility estimate, and that the acquisition of property recommended by the consultant has not been completed. To facilitate our review, Ms. Dutton provided us with copies of the "contract for the strategic plan," "another contract to begin implementation of Phase I of the [s]trategic [p]lan," and what appears to be the consultant's proposal itself. Those records were not disclosed to other parties, and have since been destroyed.
It is the opinion of this office that KRS 61.878(1)(f) does not authorize the nondisclosure of any of these records. As noted, that exemption has consistently been construed to apply to the acquisition of real property by a public agency, and purposed to subserve the public interest by insuring that agencies will not be unfairly disadvantaged in negotiations for the acquisition of real property through premature disclosure of the terms and conditions of specific offers. It has never been construed to apply to the purchase or acquisition of personalty. Consistent with the rule of statutory construction expressed in City of Owensboro v. Hoffsinger, Ky.App., 280 S.W.2d 517, 519 (1955), that it is necessary to "look to the letter and spirit of a statute, viewing it as a whole," we believe that the phrase "acquisition of property," which appears in KRS 61.878(1)(f), relates to real property as opposed to personal property. In support, we note that the term "real estate" modifies "appraisals, engineering or feasibility estimates and evaluations," and that the statute expressly provides that it does not affect the law of eminent domain. Thus, when the phrase "acquisition of property" is read in context, it is clear that its intended scope is confined to the acquisition of real property.
The consultant's report prepared by Andersen Consulting is aimed at providing a strategic plan for the Department of Agriculture in the area of computer technology. Presumably then, the only acquisitions recommended by the consultant relate to personalty in the form of computer hardware and software. Ms. Dutton does not assert, nor can we find any evidence in our review of the consultant's report to suggest, that the plan envisions acquisition of real property. Accordingly, we believe that the Department of Agriculture improperly relied on KRS 61.878(1)(f) in denying Ms. Dyke access to the contracts [1] and proposals relative to "Kentucky Department of Agriculture Growing for the Future," and must disclose those documents forthwith.
The Department of Agriculture may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/562
Distributed to:
Hon. Donna G. Dutton
General Counsel
Department of Agriculture
7th Floor, 500 Mero Street
Frankfort, KY 40601
Ms. Chris Dyke
Field Representative
Kentucky Association of State Employees
115 East 2nd Street, #2
Frankfort, KY 40601
[1]We note, in passing, that invocation of KRS 61.878(1)(f) to authorize nondisclosure of public agency contracts suggests a liberal interpretation of that exemption which is not warranted by its express terms. This office has long recognized that the contracts, vouchers and other business records of a public agency are generally open to public inspection under the Open Records Act. See, e.g., OAG 82-169.