Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Georgetown's handling of Maryann Alquist's November 11, 1996, request for copies of various ordinances. On behalf of the city, city clerk Glenwood Williams advised Ms. Alquist that she would have to submit a written request, and that she could expect a response within three days. Ms. Alquist complied with Ms. Williams's directions, and returned to the city clerk's office three days later to obtain the ordinances. She was advised that the clerk could not satisfy her request, and that the matter had been referred to the city attorney, Charles M. Perkins. Ms. Alquist then went to the city attorney's office where his secretary gave her copies of two of the ordinances. Returning to city hall, she obtained the remaining ordinances from the mayor's office.
In her letter of appeal, Ms. Alquist complains that the intent of the Open Records Act is being subverted by the City of Georgetown short of denial of inspection, and asks that the Attorney General review the city's actions pursuant to KRS 61.880(4). Noting that this was "a very minor request" which nevertheless resulted in a three day delay, she expresses concern about "other citizen's [sic] hassles in getting public records. . . ."
We are asked to determine if the City of Georgetown's handling of Ms. Alquist's request for public records subverted the intent of the Open Records Act short of denial of inspection. For the reasons set forth below, we conclude that the city's handling of her request cannot be said to have subverted the intent of the Act. Nevertheless, we believe that the city would be well advised to implement policies, and adopt practices, aimed at avoiding unnecessary delays in securing access to records of a clearly public nature.
In a follow-up letter to this office, City Attorney Perkins responded to many of Ms. Alquist's concerns. Noting that the city clerk did not deny her request, and ultimately provided the requested records within the three day period of limitations, he observed:
There are often requests which could be answered immediately if the records custodian would interrupt the work in process to prepare the response. The reason for the three day response period is, in part, to allow governmental employees to respond to requests in timely fashion while not having to interrupt other duties.
Mr. Perkins acknowledged that the City of Georgetown does not employ staff designated solely for the purpose of responding to open records requests, but asserted that the city does provide timely responses. In closing, he noted that a copy of the city's revised Code of Ordinances will be provided to the public library as soon as the Code is updated.
KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
We do not believe that the city's conduct rises to the level of a subversion of the Act's intent. In an early open records opinion, this office recognized that "it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. " OAG 77-151, p. 3. Nevertheless, we have also recognized that public "agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people. . . ." OAG 76-375, p. 4. Thus, "public agencies should accommodate requesters whenever they can within the bounds of the efficient operation of their office ." OAG 83-204, p. 4.
While it is certainly true that "the purpose of the Open Records Statute was to make records more available to the public than they were heretofore," OAG 78-35, p. 2., we do not believe that an agency subverts the intent of the statute by requiring a requester to comply with the requirements of KRS 61.872(2), relative to submission of a written request. Nor do we believe that the agency subverts the statute's intent by taking up to three days to release the requested records. KRS 61.880 (1). Whatever the rationale underlying the three day period of limitation for agency response to an open records request, we find that the agency acts within its statutory authority when it requires a written open records request and exhausts the three day period of limitation before releasing nonexempt public records. Accordingly, we find no error in the City of Georgetown's handling of Ms. Alquist's request.
We applaud the city's decision to provide a copy of its updated Code of Ordinances to the public library, and encourage it to implement other policies aimed at facilitating easy access to nonexempt public records, such as minutes of public meetings. By placing copies of such records in locations accessible to the public, the city reduces its open records workload and insures immediate public access to public records. In the meantime, we urge the City of Georgetown "to continue to work in a spirit of cooperation" with persons wishing to inspect records in its custody. OAG 91-58, p. 4.
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.