2. Negotiations

There is no statutory or case law addressing this issue.

There is no apparent generic exemption from Public Records Act provisions for documents relating to real estate negotiations, though various statutes and regulations may permit confidential treatment in particular context, such as applications for bank loans, etc.

No case law.

There is no statutory or case law involving written records of real estate negotiations. However, there is no provision allowing for closed meetings of public officials for the purpose of negotiating the purchase of real estate. When the General Assembly was debating the FOIA in 1967, an amendment was offered in the House to permit executive sessions for negotiations involving the purchase of real estate. The House initially agreed to the amendment but subsequently changed its mind and expunged the vote. Ark. Legis. Digest, 66th General Assembly, at 87, 91 (1967). During the 2001 legislative session, a bill that would permit closed meetings for discussing “the purchase, sale or lease of real property” died in committee. See S.B. 589, 83d General Assembly (May 14, 2001); see also Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004).

There are several provisions authorizing non-disclosure for specified time periods for records pertaining to various public agency negotiations with health care providers or regarding health plans.  See generally Ch. 5 of Part 5 of Div. 5, Sections 7926.210-7926.235.

Separate provisions authorize a state or local agency to withhold records concerning their “deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights” under provisions referenced in the statute.  See Cal. Gov’t Code §§ 7928.405 (state agencies), 7928.410 (local agencies). In Freedom Foundation v. Superior Court, 87 Cal. App. 5th 47, 302 Cal. Rptr. 3d 655, 661 (2022), the court rejected an argument that the categories of records listed under these exemptions were all required to be deliberative in nature to be exempt.

While a local agency may hold a closed session for the purpose of meeting with its real estate negotiator to discuss price and terms of the purchase, sale, exchange or lease of real property, there is no corollary provision under the CPRA to withhold records, though assertion of the public interest balancing test of Section 7922.000 to thwart access during the negotiation process is conceivable.  See Cal. Gov’t Code § 54956.8 (while negotiation session is closed, statute requires agency to identify real property which is subject of negotiation, the person or persons with whom negotiations may occur, and the name of the negotiator for the agency).

(This section is blank. See the point above.)

(This section is blank. See the point above.)

Records made for or by the state or a local agency relative to the acquisition of real property are exempt from the Act until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.  O.C.G.A. § 50-18-72(a)(9).

There is no statutory or case law addressing this issue.

Since all documents related to the appraisal of real estate are exempt, presumably any documents created in the negotiation of a real estate appraisal or sale are also exempt.

Available upon completion of transaction.

Access to records relating to pending negotiations involving certain enumerated agencies and commissions with industrial, research or commercial prospects may be released or denied at the discretion of the agency, under Ind. Code § 5-14-3-4(b)(5). Final offers must be released.

Appraisals, negotiations and transactional details are confidential until after the execution of the contract for purchase or sale. Iowa Code § 22.7(7)

Records of ongoing negotiations may be withheld, depending upon the circumstances, as “Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.” Ky. Rev. Stat. 61.878(1)(i); see 12-ORD-217.

No specific provision, but real estate negotiations should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

Records related to negotiations are available except when prepared for use in connection with an executive session to discuss or consider “the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development” and “only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency.”  1 M.R.S.A. 405(6)(C).

The Department of Transportation and the Maine Turnpike Authority are authorized to keep confidential records and correspondence relating to negotiations for and appraisals of property until 9 months after the completion of a project, except that records of claims that have been appealed to the Superior Court are public records following the award of the court.  23 M.R.S.A. § 63.

There is no statutory or case law addressing this issue.

Not specifically addressed.

Real estate negotiations are not public, but may become so when the parties enter into a purchase agreement. Minn. Stat. § 13.44, subd. 3.

Exempt.

See above.

Open. See Great Falls Tribune v. Great Falls Public Schools, 255 Mont. 125, 841 P.2d 502 (1992).

There is no statutory or case law addressing the issue

Negotiations are probably exempt.  See RSA 91-A:3,II(d) which permits nonpublic sessions concerning “[c]onsideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community.”

To the extent these records are made, maintained or kept on file by a government agency, they are “government records” as defined by OPRA. They may, however, be exempt from access under one of the specific exemptions contained in OPRA or under a separate statute or other legal authority pertaining to the specific record.

N.J.S.A. 47:1A-1.1 provides, in part:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:

information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position.

There are no exceptions for public land negotiations under NMSA 1978 § 14-2-1.  In addition, the commissioner of public lands must provide copies of any records kept by the state land office when requested.  NMSA 1978 § 19-1-21.

Real estate negotiations are not treated by the Public Records Law, though the Open Meetings law contains an exemption to permit closed session discussions of certain aspects of potential real estate transactions where the public body is considering the acquisition – not divesture – of real property.

A governing body may hold an executive session to discuss negotiating strategy or provide negotiating instructions to its attorney or other negotiator regarding litigation, adversarial administrative proceedings, or contracts, which are currently being negotiated or for which negotiation is reasonably likely to occur in the immediate future. N.D.C.C. 44-04-19.1(9). The executive session may be held only when an open meeting would have an adverse fiscal effect on the bargaining or litigating position of the public entity. N.D.C.C. 44-04-19.1(9).

All meetings of the governing body of a public entity that are not open to the public must be recorded electronically or on audio or videotape. N.D.C.C. § 44-04-19.2(5). The recording may be disclosed publicly only upon majority vote of the governing body, unless the executive session was required to be confidential. N.D.C.C. § 44-04-19.2(5).

There is no statutory or case law addressing this issue.

If disclosure would give an unfair advantage to competitors, then the record may be kept confidential. 51 O.S. § 24A.10(B)(5).

There is no statutory or case law specifically addressing this issue.

There is no statutory or case law addressing this issue.

If the negotiations are engaged in by correspondence, the documents would not be required to be made public until a contract is entered into.  S.C. Code Ann. § 30-4-440(a)(5).

Closed. SDCL §1-27-1.5(6).

If the property involved is being acquired through a department of economic and community development, the records would not be public until the contract is executed. T.C.A. § 4-3-730 (b).

Information is excepted from the requirements of Section 552.021 if it is information relating to the location of real or personal property for a public purpose prior to public announcement of the project. Tex. Gov't Code § 552.105. Section 552.105 "was designed to protect a governmental body's planning and negotiating position with respect to particular transactions." Tex. Att'y Gen. ORD-564 (1990).  However, when negotiations for acquisition of real property has been completed, factual information relating to the project will become open to the public. Tex. Atty. Gen. Op. No. ORD-291 (1981); Tex. Atty. Gen. Op., No. ORD-234 (1980).

“[R]ecords prepared in contemplation of sale, exchange, lease, rental, or other compensated transaction of real . . . property . . . which, if disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of the subject property” are classified as protected, with certain specified exceptions. Id. § 63G-2-305(9).

“[I]nformation pertaining to appraisals or purchase price of real or personal property for public purposes” is exempt from disclosure prior to the formal award of the contracts.  1 V.S.A. § 317(c)(13).

Records compiled exclusively for use in a closed meeting are excluded. Va. Code Ann. § 2.2-3705.1.5. Under Va. Code Ann. § 2.2-3711.A.3, a closed meeting may be held to discuss acquisition of real property for a public purpose, or disposition of publicly held property, where public disclosure adversely affects the bargaining position of the public body.

No specific authority.  See section on Appraisals.

(This section is blank. See the point above.)

Open unless disclosure would reasonably increase the price to be paid by the public entity.