Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Bowling Green's denial of the September 27, 2004 request of Jim Gaines for "[n]ames and other identifying information (addresses, etc.) of recipients of relocation benefits stemming from ongoing downtown redevelopment projects, and amount/type of these benefits." For the reasons that follow, we conclude that the City's actions were consistent with the Open Records Act and prior decisions of this office.
By letter dated September 30, 2004, H. Eugene Harmon, City Attorney, responding on behalf of the City, advised in relevant part:
At this point, I am unable to comply with your request. The Office of the Attorney General has consistently held that records pertaining to acquisitions and relocation assistance payments are exempt from disclosure until all of the necessary land was purchased. See OAG 91-31 and OAG 85-79. These opinions are based on the provisions of KRS 61.878(1)(d) which provides that the contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition of property, are exempt from disclosure until such time as all of the property has been acquired. As you stated in your request, the downtown redevelopment projects are ongoing and the City is continuing to negotiate with property owners on each of the various projects and is in litigation with three property owners involving the Community Center project. In addition, KRS 61.878(1)(a) permits nondisclosure of public records containing information of a personal nature where the public disclosure would constitute a clearly unwarranted invasion of personal privacy. Certain business relocation benefits are based on prior years' income and disclosure of that payment amount would be an unwarranted invasion of personal privacy.
At this point, I can provide composite information. As of today, the City has paid $ 41,509.96 in commercial moving, fixed payment relocation and reestablishment expenses. The City has awarded $ 68,690.00 in residential replacement housing and moving expenses for home owners and tenants and has paid $ 57,830.00 of that amount.
Shortly after receipt of the City's response, Mr. Gaines initiated the instant appeal, arguing:
We disagree strongly with this interpretation on several counts as follows:
We do not seek property appraisals or information about upcoming purchases, but rather details of funds already paid on completed property acquisitions. The appraised value (for property tax purposes) of any parcel of property is already a matter of public record. In any case, relocation benefits are a separate matter from property-value appraisals, and have no effect on the sale of property yet to be acquired.
Furthermore, since downtown redevelopment is projected to continue for perhaps two decades, we feel that the standard of withholding such information until purchases are complete - if that is the correct interpretation of Harmon's vague phrase, "until such time as all of the property has been acquired" - does not serve the public interest. We believe that concealing from the public knowledge of how tax dollars are spent for a possible 20 years is potentially more damaging to public trust and open government than any possible result of the information's disclosure.
As to the argument that filling our request would violate personal privacy, we consider that to be at best disingenuous. We do not seek a breakdown of companies' prior income, and since the weighting of variables in the city's formula for calculating relocation benefits is unknown, it is impossible for us to discover through this request what those companies' previous annual incomes were - nor do we have any interest in so doing. Even if such a reverse calculation were possible, that would have no effect on the release of relocation benefits paid to individual residents rather than businesses.
Finally, since we ask only for the breakdown of payouts already made, we consider that personal privacy does not enter into the argument. These are public expenditures, the disclosure of which serves the public interest.
After receipt of notification of the appeal and a copy of Mr. Gaines' letter of appeal, Mr. Harmon, on behalf of the City, provided this office with a response to the issues raised in the appeal. In his response, Mr. Gaines stated:
Mr. Gaines argues that the City's downtown redevelopment project is projected to last for years. While it is contemplated that the entire downtown redevelopment may take years to complete, the City is currently working on several identified projects. On September 13th, I sent him a response to an open records request that listed the specific projects currently ongoing which include the Parks and Recreation Project, the Chapter 99/Riverfront Bond Project, the Lifeskills project, the Renaissance Phase II project, the Lee Square project and the Elderly Housing project. In each of those specified projects, the properties to be acquired are identified and we also identified properties that have been acquired. As each property is finalized, the City will disclose appraisals and relocation benefits paid if requested. I am enclosing a copy of the previous response to Mr. Gaines.
In reviewing past decisions from your office in responding to this request, I did note that your office may not accept the privacy exemption to disclosure. However, I do not believe that opinion addresses one issue of primary privacy issue to business owners. If a business owner chooses to accept a lump sum payment in lieu of reestablishment expenses, that payment is based on an average of business income for the past two or three years. Releasing that information to the public discloses the income of that business to the public. It is my belief that those businesses are entitled to privacy as it relates to income disclosure, and I believe that right outweighs the public's right to know a specific relocation number. The public can be informed in those situations by some type of aggregate documents showing total business lump sum relocation payments that do not indicate individual payments.
In support of his denial, Mr. Harmon cited KRS 61.878(1)(d) as authority for withholding of records "which provides that the contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition of property, are exempt from disclosure until such time as all of the property has been acquired." It is apparent from the quoted language, that the citation of KRS 61.878(1)(d) was a miscite. The City's language in its response matches that of KRS 61.878(1)(f), which excludes 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.
In construing this provision, the Attorney General, in 95-ORD-98, p.5, 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; [OAG] 91-117.
Thus, we have recognized KRS 61.878(1)(f) is "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." 95-ORD-98, p.6.
Because the City has not yet acquired all of the properties to be acquired in each project and is in the process of negotiations or is in litigation involving the City's various downtown redevelopment projects, the records and information pertaining to the acquisitions and relocation assistance payments of each uncompleted City project are exempt from disclosure and may properly be withheld under authority of KRS 61.878(1)(f) until a particular project is completed. While we understand Mr. Gaines' frustration that he cannot inspect records which detail public funds already paid, the Supreme Court of Kentucky has observed:
with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality. A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). As noted by the City in its supplemental response, the City in its September 13, 2004 response to Mr. Gaines' open record request, identified the properties that had been acquired and the properties to be acquired in each project. The City further advised that as each project was finalized, the City would disclose the appraisals and relocation benefits paid. This response is consistent with the requirements of KRS 61.878(1)(f) and the prior decisions of this office cited above. Accordingly, we conclude the City's actions in the instant appeal did not violate the Open Records Act. Because the forgoing is dispositive of this appeal, other basis cited by the City for nondisclosure of the requested records need not be addressed.
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.
Jim GainesGovernment ReporterDaily News813 College StreetBowling Green, KY 42101
H. Eugene HarmonCity AttorneyCity of Bowling Green328 East 10th AvenueP.O. Box 430Bowling Green, KY 42102-0430