The Public’s Interest

Sept. 6, 2022
When buying land for a new road or house, public information can be a powerful tool

By Jon Straw

Federal and State versions of the Freedom of Information Act, Sunshine Laws, and requests for documents and information under Public Records Acts are intended to promote transparency of and accountability by the government. All such intentions are not without limitations. Many limitations are logically and objectively reasonable. Some limitations that may seem unreasonable likely result from the best effort to balance contrasting public interests.

Some reasonable limitations restrict the disclosure of bidders’ confidential estimating and pricing information or personal/private information. Other reasonable limitations restrict disclosure of information that could be used to undermine the public’s interest in paying a fair price for a fair gain. The issue in a recent case from Washington was to balance the dual public interest in disclosure/transparency with the interest of the public paying a reasonable price for private property.

The disclosure of and redactions to public records was at issue on a public works road improvement project for a new connection between two existing roadways in Washington. The project was to be completed in three phases. The first phase required the city to acquire 16 parcels of real property or easements across such parcels. Since the project was partially financed by federal transportation funding, all rights of way must be acquired per the city and state of Washington Department of Transportation’s(WSDOT) policies and procedures. Under the applicable policies and procedures, the fair market value of the private real property must be assessed before a purchase offer can be made by the city to any private property owner.

Through a contractual chain connecting the city to its designer, connecting the designer to the project manager, and connecting the project manager with the appraisers, documentation was gathered and prepared to assess fair market values. Based upon the assessments prepared by the appraisers, the city reviewed and approved all purchase offers then made to the private property owners.

The first offer made by the city to the plaintiff stated the city was willing to pay $0 based on the market value for plaintiff’s property. Presumably, the plaintiff felt the property was undervalued and requested the public records, including the assessment/appraisal documentation for plaintiff’s own property and for the real property of all other private owners to whom the city had made purchase offers.

Sometimes, as it seems here, the mere request for records was helpful. Upon submission of the records request to the city, the plaintiff received a second offer of $165,000 for the property. The plaintiff accepted the city’s second purchase offer for sale of the plaintiff’s property.

In formally responding to the records request, the city produced hundreds of documents each with pricing information redacted. The plaintiff sued the city, arguing the redactions of pricing information were an improper concealment of public information. Both the Washington State trial and appellate courts rejected the plaintiff’s arguments and agreed that the city’s redactions were proper under the express exceptions to the statutes enacted to balance disclosure of public information with protection of the public’s seemingly disparate interests. Ekelmann v. City of Poulsbo, Court of Appeals of Washington, Div. 2, Case No. 55767-3-II (July 19, 2022).

In this case, the public interest in not broadly disclosing the appraisal information was that public knowledge of such information could be used to unreasonably inflate pricing demands. Like most similar statutes, the Washington State Public Records Act (“PRA”) expressly requires that it be liberally construed and its exemptions [for redactions] be narrowly construed . . . to assure that the public interest will be fully protected.” In other words, documents and information will be disclosed unless the legislature specifically provides otherwise. Under the PRA, only the private property owner could receive the unredacted (fully disclosed) appraisal and pricing information and only for the owner’s particular property.

The Washington state legislature expressly exempted from disclosure the pricing/appraisal information of other parcels to anybody except the owner of each parcel to help avoid a situation where the public could be forced to pay unreasonably higher prices if the private property owners knew the values and offers on parcels other than their own. On the one hand, this seems to strike a sensible balance between an individual’s protected access to information about his or her own real property values while also trying to make best use of public funding. On the other hand, it presumes the public entity will act fairly and reasonably.

Access to or even the mere ability to seek public information can be a powerful tool to promote negotiation before a larger dispute arises. R&B

Jon Straw is a partner with Kraftson Caudle, PLC, a law firm in McLean, Va., specializing in heavy-highway and transportation construction. Straw can be contacted via e-mail at [email protected].

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