Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Kenton County Public Library's responses to John Ellenbogen's August 5, 1998 open records request to inspect the following of the Library's computer records:
a. property and assets records and accounting records,
b. current fiscal year and previous year budgeting records,
c. moneys and funds intake and outflow/payment records,
d. banking and investment records,
e. personnel records,
f. wages and salaries maintenance and payment records,
g. purchasing records for goods and services,
h. security procurement and costs and payment records.
Mr. Ellenbogen also requested a copy of the "computerized budget records for the current fiscal year and for the last fiscal year of the Kenton County Public Library on a computer storage medium." Regarding the copy of the budget records, Mr. Ellenbogen requested the Library to let him know if it preferred to use a 3.5" floppy disk for that purpose or, if not, which other specific computer data storage medium the Library preferred to use. In addition, he asked, if the Library used its own floppy disk, how much it charged for the disk. In the alternative, he asked if he was permitted to supply his own floppy disk.
By letter dated August 11, 1998, Mary Ann Mongan, Director of the Library, responded to Mr. Ellenbogen's August 5, 1998 request. In her response, Ms. Mongan stated:
We have received your request for access to library records under the Open Records Act. We can furnish to you on 3.5" floppy disks a copy of the library budgets for 1997-98 and 1998-99, and the notes to the budget for 1998-99. The 1997-98 notes are available in paper only. Both budgets have been done using Excel, and the notes in Microsoft Word. We will furnish the diskettes at the cost of 95 cents each.
The computer records which you wish to inspect present more of a problem. Most of the items are maintained with accounting software, a few others on Excel, the remainders only on paper. The accounting software is used by our bookkeeper, and is licensed for only one computer. Please advise me of how you wish to proceed on this. There would of course be a charge for producing paper copies of those items you request.
If you wish to pick up the disks for the budgets, ask for Kelly when you come in.
On August 14, 1998, Mr. Ellenbogen, by facsimile copy, responded to Ms. Mongan's August 11, 1998 response. In this response, he acknowledged that he had received one 3.5" floppy disk with three computer files on it, after payment of $ 0.95 for the disk. He indicated that he considered $ 0.95 to be an extremely high price for a 3.5" floppy disk and asked to inspect the 10 most recent invoices for purchases of floppy disks by the Library. In regard to other portions of his August 5, 1998 request, Mr. Ellenbogen commented:
The three computer files on a floppy disk are a minor part of my Open Records Request of 05 August 1998. Your letter of 11 August 1998 does not state, for which requested records you deny inspection and your reasons therefore, nor does it inform me with specificity as to which records I may inspect and the windows of time for such inspections. Please let me know quickly, if your letter of 11 August 1998 is a more or less blanket denial of my Open Records request, or what else you intend to do to make my requested inspection practically feasible.
In his August 20, 1998 letter of appeal, Mr. Ellenbogen asks this office to determine whether the Library's actions in response to his August 5, 1998 open records request were consistent with the requirements of the Open Records Act.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal," and a copy of the letter to the Library. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Gerald E. Benzinger, counsel for the Library, by letter dated August 27, 1998, provided this office with a response to the issues raised in the appeal. In his response, Mr. Benzinger summarized the events surrounding Mr. Ellenbogen's August 5, 1998 open records request as follows:
The Library received Mr. Ellenbogen's first request for records on August 5, 1998 (Exhibit A). Mr. Ellenbogen requested to receive a full copy of the computerized budget records for the current and last fiscal year of the Library and he also requested to inspect certain computer records. The Library responded the fourth business day, August 11, 1998, following the request. In its response (Exhibit B), the Library informed Mr. Ellenbogen that those records which were immediately available would be furnished to him on a 3.5" floppy disk. Mr. Ellenbogen subsequently picked up that disk from the Library on August 12, 1998. The Library also informed Mr. Ellenbogen that the computer records he requested to inspect presented more difficulty for the Library. The Library explained that some of the records are available only on paper or are licensed for use on one computer. At this point, the Library did not deny any part of the request. The Library only asked Mr. Ellenbogen in what manner he would like to proceed to obtain these records.
On August 14, 1998, the Library received a second letter from Mr. Ellenbogen (Exhibit C). In numerical paragraph 1 of this letter he disputed the $ .95 fee the library charged him for the disk it had provided him. He therefore requested to inspect the ten most recent purchase invoices the Library had for computer disks. Based on numerical paragraph 2, apparently Mr. Ellenbogen took the Library's August 11 response asking in what manner he would like to proceed to be a partial denial to inspect the records he had requested (see numerical paragraph 2, Exhibit C). The Library did not deny access to the records he seeks. The request for additional records made in numerical paragraph 1 of the August 14 letter was subsequently withdrawn by Mr. Ellenbogen in his letter of August 20, 1998 (Exhibit D).
In addition, Mr. Benzinger stated that, on August 25, 1998, the Library had sent Mr. Ellenbogen a supplemental response to his August 5, 1998 request. This office was provided a copy of that response. The supplemental response from Mary Ann Mongan, Director, to Mr. Ellenbogen, in part, explained:
This is a supplemental response to our letter of August 11, 1998, under KRS 61.872 to your Open Records Act request of August 5, 1998. You are required to identify with reasonable particularity the documents which you wish to receive. A number of your requests are vague and do not comply with the requirement for particularity. However, the Library is willing to attempt to comply with your request to the best of its ability.
We have previously provided you with a copy of the library budgets for 1997-98 and 1998-99 and the notes to the budget for 1998-99 on a 3.5" floppy disk as you requested in numerical paragraphs two and three of your request. The $. 95 fee you were charged for the disk was obtained from a catalogue. Upon review of the invoice, the actual discounted cost of the disk was found to be $ .69. We will credit any additional fees in the amount of $ .26 once those fees are calculated or a check will be issued to you at your request. As we advised you in our response of August 11, 1998, some of your other requests require further clarification and/or are not available in the format which you requested, nor can they be put into the requested format without substantial time and expense. Other items which you requested are not subject to disclosure under [the] Open Records Act. With regard to your request to inspect computer records, the Library does not have the capability to allow you to inspect the records on the Library computers nor does the Library permit the general public access to its internal computer programs for security reasons. However, the Library is willing to provide you with a copy of available records on a 3.5" floppy disk where possible.
In his letter of appeal, Mr. Ellenbogen asks this office to determine whether the Library's actions, in response to his August 5, 1998 open records request, were consistent with the requirements of the Open Records Act. For the reasons which follow, we conclude that, although the Library's initial response was procedurally deficient, its substantive responses were in substantial compliance with the Act.
We note at the beginning that this office has received multiple responses to responses from both parties subsequent to the receipt of the letter of appeal. The responses, in part, raise issues surrounding additional open records requests made by Mr. Ellenbogen and the Library's responses thereto. We will not address those issues in this appeal. Moreover, other issues raised are, at this time, either premature or are situations in which the parties appear to be clarifying or working out the specifics of given requests and which may be resolved by the mutual cooperation of the parties.
In this appeal, we will address only issues surrounding Mr. Ellenbogen's August 5, 1998 open records request and responses submitted by the parties which are relevant to the immediate issues raised in his August 20, 1998 letter of appeal.
KRS 61.880(1) requires that an agency response to an open records request within three business days after receipt of a request. The Library's response to the request was made on the fourth business day. This was one day late. Although this is not an egregious delay, it nevertheless was not in compliance with KRS 61.880(1). Accordingly, we conclude that the Library's failure to timely respond within three business days was a procedural violation of the Open Records Act.
Turning to the substantive issues in this appeal, we find that the Library was in substantial compliance with the Open Records Act. As noted from the facts set out above, the Library provided Mr. Ellenbogen with a copy of its computerized budget records for the current and last fiscal year on a 3.5" floppy disk as he requested, charging him $ 0.95 for the disk. Upon Mr. Ellenbogen's protest that this charge was excessive, the Library reviewed the invoice related to its purchase of floppy disks and determined that the actual discounted cost of the disk was $ 0.69. The Library informed Mr. Ellenbogen that it would either refund him the $ 0.26 difference or credit that amount towards payment of other records he had requested.
Thus, the Library charged Mr. Ellenbogen the actual cost of the floppy disk as reflected in its invoice. This was consistent with KRS 61.874(3), which permits an agency to charge a reasonable fee for making copies of nonexempt records, "which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency."
Next we address Mr. Ellenbogen's August 5, 1998 request to inspect certain of the Library's computer records. In its August 11, 1998 response to Mr. Ellenbogen's request, the Library indicated that most of the items were "maintained with accounting software, a few others on Excel, the remainder only on paper. Please advise me as to how you wish to proceed on this."
In view of the broad nature of Mr. Ellenbogen's request, we conclude this was a reasonable response on the part of the agency in attempting to meet the demands of his request. The Library did not deny him access to the records. As Mr. Benzinger explained in the Library's August 27, 1998 supplemental response to the letter of appeal:
The Library did not deny access to the records he seeks. The Library was simply making a good faith effort to meet his demands.
We agree. The Library explained the problems associated with the request to inspect the computer records, how they were maintained, and that some of the requested records were only on paper. The Library then asked Mr. Ellenbogen how he wished to proceed with his inspection. This was an effort to advise the requester as to the nature of the records requested and an attempt to accommodate him by asking how he would like to inspect the records. Accordingly, we conclude this was a proper response by the Library and not an attempt to deny Mr. Ellenbogen access to the requested records.
The Library has informed Mr. Ellenbogen that certain of the records requested are in paper version only and are available for inspection. It has further indicated that it will provide a copy of available computer records on a 3.5" floppy disk for Mr. Ellenbogen's inspection. Thus, he should contact the Library and advise as to how he wishes to inspect these records and make arrangements as to a convenient time and place for such inspection to take place. If any portion of the records requests is unclear to the agency, Mr. Ellenbogen should identify the particular records he seeks ( e.g. , the request for records from employees' personnel files) to enable the Library to identify the specific records being requested and respond accordingly.
It is the decision of this office that, under the facts of this case, there was no substantive violation of the Open Records Act. We do note that the Act contemplates a spirit of cooperation between the parties entangled in an open records request. Under the circumstances, as described above, particularly with the number and nature of the requests involved, we urge the parties to this appeal to work toward an amiable resolution of their differences and understandings in the processing of this and other open records requests prior to bringing an appeal to this office or to the circuit court.
We do note that in response to Mr. Ellenbogen's requests for personnel records, the Library has asked that he provide a more specific request so that the agency can determine if the records are open or exempt from public inspection.
In 97-ORD-66, this office stated:
With respect to employee personnel files, we believe that records unrelated to public employment which are found in those files are excluded from public inspection by KRS 61.878(1)(a). Because both exempt and nonexempt records are commingled in those files, we believe it is incumbent on [the requester] to specifically identify the personnel records he wishes to inspect.
Because the personnel files which Mr. Ellenbogen requested no doubt contain this mixture of exempt and nonexempt records, it is incumbent on him to "specify the particular documents within such files to be inspected." OAG 85-88, p. 3.
As guidance on this issue, we note that the Attorney General has consistently held that a public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example OAG 78-133; OAG 91-20; OAG 92-34; 95-ORD-123; 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90. Regarding his request for records from employees' personnel files, Mr. Ellenbogen should specifically identify the records he wishes to inspect. Both he and the Library should be guided by these observations.
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.