Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Anderson County Board of Education properly relied on KRS 61.878(1)(j) in denying Anderson News publisher Ben Carlson's July 5, 2012, request to inspect "[t]he most recent appraisal done on the former Early Childhood Center on Main Street in Lawrenceburg." Because 94-ORD-85, the open records decision interpreting KRS 61.878(1)(j) upon which the board relies, is factually distinguishable from the appeal before us, we find that the board's reliance on KRS 61.878(1)(j) was misplaced. The board's denial of Mr. Carlson's request therefore violated the Open Records Act.
On behalf of the board, Superintendent Sheila Mitchell issued a timely written response to Mr. Carlson's request advising him that "the information [he] requested is exempted from inspection per KRS 61.878." 1 Mr. Carlson immediately notified Superintendent Mitchell that her response "failed to conform to the[] requirements of KRS 61.880(1)" insofar as it did not include a statement of the specific exception authorizing nondisclosure or an explanation of how the exception applies to the record withheld. Superintendent Mitchell thereafter attempted to correct the error by citing "KRS 61.878(f)(j)," explaining that "[t]he Early Childhood Center property transfer is still in the preliminary stages and not been fully acquired by the bidder." This appeal followed.
In his letter of appeal, Mr. Carlson indicates that the board "advertised for and received bids to sell a building it owns but no longer needs . . . [and] has since voted to accept a bid for that property." Noting that the superintendent told him "over the phone the appraised value of the building," it is his position that the board's vote constituted final agency action and that KRS 61.878(1)(j) is therefore inapplicable. 2 In supplemental correspondence directed to this office, the board acknowledges that its original response was procedurally deficient and that KRS 61.878(1)(f) "does not apply to the requested record as that exemption only applies where the agency is acquiring property." Nevertheless, the board reasserts its belief that KRS 61.878(1)(j) authorizes nondisclosure of the appraisal "until the property transaction is final and the property no longer belongs to the agency." The board explains:
Though the board has voted to accept a bid, the acceptance of the bid is not the same as the sale or purchase of the property. The final purchase does not occur until the closing and transfer of the deed. Until that time, the purchase agreement can fall through and the property would be subject to being advertised for bids to identify a new purchaser.
Contrary to Mr. Carlson's argument, the board maintains that acceptance of a bid "is merely an intermediate step in the disposition of the property," and the appraisal remains a preliminary document. In support, the board cites 94-ORD-85. Because the agency whose actions were challenged in that open records decision had only expressed an intent to sell the subject property, and had not advertised for or accepted a bid on the property, that decision is factually distinguishable. We therefore disagree with the board's analysis.
In 94-ORD-85, the Attorney General affirmed the City of Owensboro's reliance on KRS 61.878(1)(j) 3 to support the denial of a request for the appraisal on a public building whose occupant was in the process of relocating. The city had expressed an intent "to sell or lease" the building but had not advertised for bids, received bids, or accepted bids. Under these circumstances, we agreed with the city that "any appraisal conducted at the request of a potential seller, prior to an anticipated sale, is preliminary." 94-ORD-85, p. 4. Such is not the case in the instant appeal. The Anderson County Board of Education has advertised for bids, received bids, and, by formal and in our view final action, voted to accept a bid. It has entered into a purchase agreement with the purchaser. The protection from public disclosure afforded by KRS 61.878(1)(j) ceased when the board conducted this vote. The board's argument that the exception's protections do not cease "until the closing and transfer of deed, " finds no support in prior open records decisions cited by the board or any authority of which we are aware. It is to the board's actions that we look and not to those of the purchaser in securing financing and consummating the purchase. "Final action," for purposes of KRS 61.878(1)(j) analysis, occurred when the board voted to approve the purchase. The appraisal forfeited its preliminary characterization at that juncture since, perforce, the board relied on it in assessing the adequacy of the bid.
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:
Ben CarlsonRobert ChenowethSheila Mitchell
Footnotes
Footnotes
1 Superintendent Mitchell provided Mr. Carlson with a copy of "[t]he most recent property insurance records on [the Early Childhood Center] building" in response to the second part of his request.
2 Mr. Carlson also disputes the board's reliance on KRS 61.878(1)(f), arguing that the exception is facially inapplicable because it applies, by its express terms, to the acquisition of property.
3 KRS 61.878(1)(j) authorizes nondisclosure of "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"