Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Transportation Cabinet violated the Open Records Act in the disposition of Courier-Journal reporter R. G. Dunlop's request for all records pertaining to condemnation cases concluded between January 1, 1989, and the present and all pending condemnation cases. For the reasons that follow, we find that although the Cabinet violated the Act in failing to produce a copy of its litigation docketing and tracking system in the requested electronic format, the Cabinet did not violate the Act in denying Mr. Dunlop access to some fourteen years of hard copy condemnation litigation files on the basis of KRS 61.872(6), or in denying him access to records disclosing monetary values of real estate appraisals on the basis of KRS 61.878(1)(f).
In his May 10, 2004, request to the Cabinet, Mr. Dunlop advised:
It is my understanding that most of this information is contained in one or more databases maintained by the Office of General Counsel/Legislative Affairs of the Kentucky Transportation Cabinet. . . . I request that any responsive databases be copied to a diskette for disclosure.
As an alternative to production of the requested records in an electronic format, Mr. Dunlop requested them "in a paper format. " 1
On behalf of the Transportation Cabinet, Assistant General Counsel J. Todd Shipp denied Mr. Dunlop's request, advising him as follows:
[W]e have replied to your requests on two separate occasions and again will refer to them for the reasons your third request will be denied. We will incorporate our responses herein and as such will not belabor the points.
This appeal followed.
In supplemental correspondence directed to this office, Mr. Shipp asserts that the Cabinet "does not possess a database that reflects or holds the information that Mr. Dunlop seeks," and is not required to create a record containing "answers to his questions." Responding to The Courier-Journal's argument that Mr. Dunlop's request is sufficiently specific and not unreasonably burdensome, Mr. Shipp observed:
The very fact that this Cabinet provided him with a list of the cases would allow him the full opportunity to make a specific request for any of the files that are within the archives of the Commonwealth of Kentucky. 2
Further, Mr. Shipp noted:
[T]o extrapolate the answers to his questions and create the records he wants would require an individual hard file review of nearly 20,000 files.
In support of the Cabinet's reliance on KRS 61.878(1)(f) as the basis for withholding appraisal amounts, Mr. Shipp argued that "[t]o allow a full public disclosure for all to see, especially within the project area, would create an atmosphere of the Cabinet bidding and buying against itself." He rejected The Courier's argument that the public is entitled to inspect real estate appraisals, KRS 61.878(1)(f) notwithstanding, because the Cabinet's "Right of Way Guidance Manual" requires the Cabinet to provide the owner with a copy of his or her appraisal if an offer is based on the appraisal, characterizing the argument as "an erroneous leap in . . . logic. . . ."
In response to this office's KRS 61.880(2)(c) requests for additional documentation, the Cabinet advised:
The electronic format that this office possesses is a docketing system and litigation tracking system [consisting of a one screen case data report]. It does not have nor does this office scan legal documents into an e-file . . . . The hard copy files contain all of the incidental documents that any large legal file would hold, including attorney work product as well as attorney-client privileged material.
Elaborating on the difficulties associated with separating excepted from nonexcepted materials contained in this manual filing system, Mr. Shipp indicated that per KRS 61.878(1)(f):
Appraisals on property need not be made available for inspection until . . . all the parcels of land owned by various landowners have been acquired. This exception is applicable to the active condemnation cases Mr. Dunlop seeks . . . [and] to those closed cases that still have active litigation in and around the closed parcel within the project perimeter.
The Cabinet agreed to afford Mr. Dunlop access to any specifically identified closed file he wishes to inspect.
The Courier countered that Mr. Dunlop's request will be satisfied by "whatever electronic filing system the Transportation Cabinet uses," but insisted that the Cabinet is, in fact, required to "search for a record that may contain an answer to the requester's questions." Clarifying the nature of the records sought, The Courier advised that Mr. Dunlop "wishes to review the contents of all litigation files relating to past and present condemnation cases for [the fifteen year period]," and asserted that although these records are substantial in number, "[they] are easily identifiable and should be available for public inspection upon request." Our resolution of this dispute hinges on prior decisions of this office requiring production of the Cabinet's existing electronic database but recognizing that until Mr. Dunlop identifies specific case files, based on his review of the database, the Cabinet has no further obligation and is not required to permit him unfettered access to its hard copy litigation files or disclose appraisal values.
The Attorney General has addressed the issue of public access to governmental databases in a number of recent decisions, recognizing as a threshold issue, that a "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)." 03-ORD-214, p.6, citing 00-ORD-206, p. 7. In 03-ORD-214, example, we were asked to determine if the Kentucky Tobacco Settlement Trust Corporation properly denied a request for the Phase II payments database for the year 2002, identifying the quantities used in calculating payments (indicating tobacco quota owned or tobacco grown), and requiring manipulation of the data contained therein. We concluded that the Corporation erred in denying the request, but satisfied its obligation to disclose the records by producing them in standard format, as defined at KRS 61.874(2)(b). The Corporation was not required, in our view, to tailor the format to conform to the parameters of the request. Relying on 03-ORD-004, in which we held that the Cabinet for Health Services was not obligated to compile information in a format which did not exist or direct the creation of a program to extract that information from the existing database, we held that the Corporation's obligations were satisfied by release of the entire database in the format in which it is regularly maintained." 03-ORD-214, p. 9, citing 03-ORD-004, p. 8, 9 and 02-ORD-89, p. 12, note 5. Copies of 03-ORD-004 and 03-ORD-214 are attached hereto and incorporated by reference.
The parties have apparently been at loggerheads for some time concerning what it is Mr. Dunlop wants. The Cabinet has resisted The Courier's efforts to require it to extract information from its database to fulfill Mr. Dunlop's requests for specific data elements, characterizing his request as a request for information requiring the creation of a previously nonexistent record. The Courier has asserted its entitlement to these records, characterizing the Cabinet's responses to Mr. Dunlop's request as "word games." It is now clear that Mr. Dunlop's May 10 request for "any responsive database" will be satisfied by production of the Cabinet's electronic docketing and litigation tracking system in the electronic format in which it is regularly maintained. As noted at page 9 of 03-ORD-004, "[w]hile the [agency's] database may contain more information than [the requester] seeks, or less information than [] he seeks, it clearly contains information that is responsive to [his] request," and is, in this sense, a responsive database which must be disclosed. Disclosure of the electronic database to Mr. Dunlop should enable him to frame any subsequent requests with greater specificity. As evidenced by our attempts to isolate the issues on appeal by propounding a series of questions to both the Transportation Cabinet and The Courier-Journal per KRS 61.880(2)(c), we concur with the Cabinet in its view that Mr. Dunlop's request, even after undergoing substantial refinement, constituted a blanket request for the production of records which would impose an undue burden on the Cabinet within the meaning of KRS 61.872(6).
KRS 61.872(6) states that if request places an unreasonable burden on the public agency in producing public records the agency may refuse to permit inspection of the records, and "is intended to afford relief to [an agency] where a single records request [or a series of requests] is such that production of those records would unreasonably burden the agency." 04-ORD-113, p. 9. "In determining whether an open records request is unreasonably burdensome, " this office has observed, "we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function." 04-ORD-113, p. 10, citing 96-ORD-155, p. 3, 4. With particular reference to KRS 61.872(6), we have observed:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this condition. If an agency invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it. This burden is not sustained by the bare allegation that the request is unreasonably burdensome. . . . Only if the agency has adduced evidence that would warrant this office in finding that the burden is indeed an unreasonable one will the Attorney General uphold its action.
92-ORD-1261, p. 3, cited in 04-ORD-113. In 96-ORD-42 and 97-ORD-88, we affirmed public agency's denial of open records requests on the basis of KRS 61.872(6). Copies of these decisions are attached hereto and incorporated by reference to suggest the "degree of specificity which KRS 61. 872(6) envisions." 04-ORD-113, p. 11.
The records Mr. Dunlop requested are of an identified, but by no means limited, class. Based on the sheer volume of records implicated by the request, coupled with the difficulties associated with separating excepted and nonexcepted materials, we find that invocation of KRS 61.872(6) is warranted in this case. Mr. Shipp explains that some 20,000 files are at issue, and that each file contains attorney work product and privileged material, as well as property appraisals which may be protected by KRS 61.878(1)(f), even if the case is closed, if adjoining properties have not been acquired. In past decisions, this office has recognized that a request for voluminous documents is not necessarily indicative of an unreasonable burden where the requester states that he is willing to inspect the records himself. See e.g., 97-ORD-6. Thus, we have noted that the presence of some exempt information in the disputed records did not necessarily relieve the agency of the obligation to provide all nonexempt information since "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 97-ORD-6, p. 5, citing OAG 81-198, p. 4. Mr. Dunlop has expressed his desire to conduct an onsite inspection of the 20,000 hard copy files that are responsive to his request.
Nevertheless, where, as here, the scope of a request can be refined by reference to soon to be disclosed public records, namely the litigation docketing and tracking system, we see no reason why the Cabinet should be compelled to expend countless hours in reviewing 20,000 files to insure that protected information is not disclosed. The Cabinet does not dispute the public character of the litigation files or its obligation to produce them, it merely seeks a refinement in Mr. Dunlop's request to avoid the unreasonable burden that that request, as currently framed, imposes. We affirm the Cabinet's position in this regard.
So, too, we affirm the Cabinet's position that The Courier is not entitled to unrestricted access to appraisal values. In denying this portion of Mr. Dunlop's request, the Cabinet relies on KRS 61.878(1)(f) authorizing nondisclosure of:
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.
Analyzing the exemption in some depth, in 97-ORD-171 this office observed:
"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; 91-117.
97-ORD-171, p. 2; compare 98-ORD-175; 99-ORD-215. A copy of 97-ORD-171 is attached hereto and incorporated by reference. While we do not agree that appraisal values are forever exempt, we believe that the Cabinet may properly withhold the values, as to the public generally, until the conditions set forth in 97-ORD-171, and the authorities cited therein, are met.
We are not persuaded that the Cabinet's policy of providing a copy of the property appraisal to the owner of the property if the offer for the property is based on the appraisal, found in its "Right of Way Guidance Manual" undermines its authority to invoke the exception as to the public generally. Simply stated, disclosure to the property owner by virtue of this policy is not synonymous with disclosure to the public under the Open Records Act, and the Cabinet is not estopped from relying on the exception to promote the interests for which the exception was enacted. Unless the legislature elects to repeal the specific exception codified at KRS 61.878(1)(f), the Cabinet may properly rely on it where circumstances warrant. Having said this, we reiterate that upon presentation of a revised open records request, identifying particular condemnation files and based on a review of the Cabinet's litigation tracking database, Mr. Dunlop must be afforded access to real estate appraisals, including monetary values, if those properties, and properties within the limits of the project area, have been acquired. Production of these records should not impose an undue burden on the Cabinet.
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.
Distributed to:
Jon L. FleischakerDinsmore & Shohl LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Charles K. HollanCustodian of RecordsTransportation Cabinet200 Mero StreetFrankfort, KY 40622
Frank Miller, Jr.Executive DirectorOffice of Legal ServicesTransportation Cabinet200 Mero StreetFrankfort, KY
Todd ShippOffice of Legal ServicesTransportation Cabinet 200 Mero StreetFrankfort, KY 40622
Footnotes
Footnotes
1 On April 4, 2004, Mr. Dunlop requested "[a] list, preferably in electronic form, of all condemnation lawsuits filed by the Transportation Cabinet and currently pending in Kentucky . . . identify[ing] each case by the parties involved; the circuit court number; and the county in which the case is filed." Mr. Dunlop also requested "a list of all appraisals performed by or for the Cabinet in connection with the Furnace Stanton Road project . . . ." In response, the Cabinet provided him with a hard copy list of closed and pending cases containing the case name, number, county, and status, and a list of real estate appraisals excluding monetary values. On April 26, Mr. Dunlop renewed his request for electronic databases containing records concerning pending and closed condemnation cases, identifying nineteen categories of information sought in relation to closed cases, and fifteen categories of information sought in relation to pending cases. He asked that the Cabinet provide him with any additional information in the database, and that the Cabinet notify him if any of the requested information was not contained in the database. The Cabinet denied this request as a broadly worded request for information that would require the creation of a record, and as unreasonably burdensome. The Cabinet again denied Mr. Dunlop's request for real estate appraisal values on the basis of KRS 61.878(1)(f). Following an exchange of emails with the Cabinet, Mr. Dunlop submitted the open records request that is the subject of this appeal.
2 The Transportation Cabinet's Records Retention Schedule for "Case File - Condemnation for Right of Way," Records series 05006, indicates that these files should be transferred to the State Records Center after case closure and retained at that Records Center for fourteen years.