An open records decision issued by the Kentucky Attorney General last week illustrates the perils of unsportsmanlike conduct and poor draftsmanship by both requester and agency.
https://ag.ky.gov/orom/2019/19-ORD-214.doc
On October 11, Joe Spiaggi submitted a request to the City of Jeffersontown for "all information on Handycap [sic] Parking, ie: zoneing [sic], complaints, code, inforcement [sic], ciatitions [sic], and all other related records."
Having received no response to his request, Spiaggi appeared at city hall four days later to retrieve the requested records.
What followed was a verbal altercation between Spiaggi and city attorney Schuyler Olt that reflects unfavorably on both.
The Attorney General recounts:
"According to Mr. Olt, Mr. Spiaggi 'immediately became angry and abusive, saying his purpose was to "cause all kind of hell for Jtown" or words to that effect.'" According to Mr. Spiaggi, Mr. Olt stated: '[A]ll you want to do is cause trouble for us ⦠why should we help you ⦠we're not going to give you anything.'"
â"By his own account, Mr. Spiaggi 'asked for another Open Records Request form, to clarify what [he] wanted,' but the city attorney 'told the clerk not to give [him] one.' According to Mr. Olt, Mr. Spiaggi 'continued his tirade,' calling the city attorney 'dummy' and poking a finger at his chest. It is undisputed that Mr. Olt directed someone to call the police to get Mr. Spiaggi to leave."
One day later, Olt notified Spiaggi that the requested records would be mailed to Spiaggi "before November 11." Olt later extended the deadline for production of responsive records to November 30, explaining that the city's records custodian was unavailable.
Spiaggi appealed to the Attorney General. In responding to the appeal, Olt advised, "Mr. Spraggi [sic] will get his documents as soon as we can pull them together. He MAY NOT come to City Hall to get them, given his very threatening behavior."
The Attorney General determined that the City of Jeffersontown violated the open records law by postponing Spiaggi access to the requested records without legal justification.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750
The Attorney General also found that the city's refusal to permit Spiaggi to conduct onsite inspection violated the law. The Attorney General reminded the city that the statute invests the public with the right to inspect records onsite. Acknowledging that a confrontation occurred when Spiaggi appeared in person to retrieve the records he requested, the Attorney General found "no indication of an imminent threat to public safety that might warrant permanently banning Mr. Spiaggi from City Hall."
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The Attorney General nevertheless reminded Spiaggi that a properly formulated open records request "must describe the records [sought] so as to make locating them reasonably possible."
Although the standard for determining the adequacy of a request to conduct onsite inspection is not difficult to meet (a request satisfies the standard if it is "adequate for a reasonable person to ascertain the nature and scope of [the] open records request"), the Attorney General noted that "even under this standard, 'blanket requests for information on a particular subject without specifying certain documents need not be honored.'"
Spiaggi's original request for all information on handicapped parking, zoning, complaints, code enforcement, citations, and "all other related records" arguably constituted a "blanket request."
The problem for the City of Jeffersontown was that although it originally denied Spiaggi's request because it could not determine what records Spiaggi wanted, one day later the city agreed to mail the requested record to Spiaggi.
The Attorney General observed:
"A request for records by mail is subject to a higher standard, according to which the requester must 'precisely describe' the records. By promising to mail the requested records to Mr. Spiaggi, the City implicitly admitted that he had met this standard of precise description, and thus waived any argument that the request was insufficiently specific."
No doubt Spiaggi's dispute with the City of Jeffersontown predates the open records exchange that resulted in this verbal altercation, appeal, and determination of multiple violations of the open records law. But persons contemplating submission of a request would do well to learn from Spiaggi's mistakes in draftsmanship as well as decorum.
Public agencies, on the other hand, would do well to remember, in the words of an early open records opinion, that they "should exercise patience and long suffering in making public records available for public inspection."
