Request By:
In re: Suzette Blevins/City of Brooksville
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; By: AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in the submission of a request for records and information by Suzette Blevins to the City of Brooksville. On October 3, 1995, Ms. Blevins requested access to:
1. The address and telephone number of Ken Pendleton[;]
2. The plan(s) and/or specification(s) prepared by Ken Pendleton.
Ms. Blevins represents Blevins Engineering, Civil and Mining Engineering Consultants, a firm which was hired by the Bracken County Fiscal Court to develop plans for the Bracken County Water District. She maintains that the City of Brooksville wrongfully appropriated these plans, authorizing Ken Pendleton to use them to design a gas system for the city.
In a letter dated October 6, 1995, Mayor Betty C. Rudd responded to Ms. Blevins's request:
In responce [sic] to your open records request for information concerning Mr. Pendleton, be advised that, first, no written agreement has been reached with Mr. Pendleton regarding the gas project to my knowledge, although some consulting services may have been performed. We are trying to determine whether his services may be used in the future. However, if he is not licensed in Ky, [sic] and cannot be used legally, then he will not be used.
Mayor Rudd advised Ms. Blevins that the city would furnish her with the records and information "once we determine what the exact status of Mr. Pendleton is; if we are invoiced for his services and if we elect to pay the invoice [sic]."
We are asked to determine if the City of Brooksville violated provisions of the Open Records Act in its response to Ms. Blevins's request. For the reasons set forth below, and upon the authorities cited, we conclude that the city's response violates the Act.
We begin by noting that the city's response was procedurally deficient. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Thus, subsection (1) requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days, and indicate when the records will be available for inspection, or cite the specific exception to public inspection authorizing nondisclosure.
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency attempts to determine the "status" of the individual whose records have been requested. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, 1 or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
Although the City of Brooksville issued a response, of sorts, within the three day statutory deadline, the city neither expressly denied Ms. Blevins's request, citing an exception authorizing this denial, nor did the city invoke KRS 61.872(5) as justification for its decision to temporarily deny her access to the records. The rationale for temporary nondisclosure advanced by the city is not supported by the Act.
Mayor Rudd states that the city has not entered into a contract with Mr. Pendleton, but acknowledges that he "may have" acted as a consultant. She bases her temporary denial of Ms. Blevins's request on Mr. Pendleton's indeterminate status relative to the gas system project. Simply stated, this is not an adequate basis for denial under Kentucky's Open Records Act. Unless the records which Ms. Blevins asks to inspect fall within one or more of the exceptions codified at KRS 61.878(1)(a) through (1), the city is obligated to release them to her for inspection. Having failed to invoke one of these exceptions, and explain its application to the records withheld, the city violated KRS 61.880(1), and failed to meet its burden of proof in sustaining its action per KRS 61.880(2)(c). We are left with no alternative but to find that the City of Brooksville's response was both procedurally and substantively deficient, and to order disclosure of the requested records.
We hasten to note, however, that the city would not have been obligated, under the Open Records Act, to honor Ms. Blevins's request for information, specifically her request for Mr. Pendleton's address and telephone number. This office has repeatedly recognized that requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records ? [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request." OAG 89-77, p. 4. Elaborating on this view, in OAG 87-84, at page 3, we observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
See also, OAG 90-100. Nevertheless, having failed to advance this argument, and consistent with the views expressed above relative to the agency's burden of proof, we must conclude that the City of Brooksville's response to Ms. Blevins's request for information was deficient. If a record exists which contains Mr. Pendleton's address and telephone number, Ms. Blevins must be afforded access to it.
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.
Footnotes
Footnotes
1 The city does not argue that it does not have custody or control of the disputed records. Accordingly, KRS 61.872(4) has no application to this appeal.