Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Russell Springs violated the Open Records Act in responding to A. B. Hare's September 8, 1998, request for records relating to the salaries of certain public officials for discrete periods of time. For the reasons that follow, we find that the city's response was not consistent with the provisions of the Act.
Mr. Hare requested copies of the "ordnance [sic], municipal orders, minutes of council and/or commissioners meetings or other documents establishing salaries for the mayor and city council for the period January 1, 1990 through December 31, 1993 and for the mayor and city commissioners for the period January 1, 1994 thru present date." On behalf of the City of Russell Springs, Harriet Black Buchanan, city clerk, responded to Mr. Hare's request on September 10, advising him as follows:
In reply to your open records request . . ., I offer the following information: the salary for mayor/council from 1-1-90 through 12-31-93 was established in the early 80's and was not changed until July, 1994 at which time salaries were set for the new form of government as part of the budget process of 1994. Salaries were set at $ 400/$ 200, and that increase currently remains in effect.
Ms. Buchanan did not furnish Mr. Hare with copies of records supporting these statements.
Mr. Hare resubmitted his request on September 21, reminding Ms. Buchanan that he wished to obtain copies of records which were responsive to that request. He asked that she advise him whether any responsive documents exist, and if not to account for their nonexistence. On September 24, Ms. Buchanan responded to Mr. Hare's renewed request, notifying him that his letter had been forwarded to the city attorney. This appeal followed.
In a letter dated October 8, 1998, Ms. Buchanan elaborated on the city's position. She explained that Mr. Hare "has, as part of past requests, inspected and/or copied minutes of council/commission meetings since the 1980's, tape recordings of some meetings, the city's code of ordinances, the municipal order book, budgets, audited financial statements, statements of financial interest for candidates and officials, personnel policies and procedures and titles to motor vehicles owned by the city." Ms. Buchanan indicated that she had complied with his requests "as best [she] could," but "no longer [knew] how to respond to his numerous requests."
In the absence of any proof that Mr. Hare has previously requested and received these records, or that his requests have become unreasonably burdensome, we must conclude that the City of Russell Springs did not discharge its duty under the Open Records Act, and that it is obligated to locate, and make available for Mr. Hare's inspection and copying, records reflecting the establishment of the mayor's and city council persons' salaries for the period of January 1, 1990, through December 31, 1993, and records reflecting the establishment of the mayor and city commissioners' salaries for the period of January 1, 1994, through the present.
In 1989, this office issued an open records decision to the City of Russell Springs on a question which was similar to the question with which we deal today. There, the requester sought access to various records reflecting the expenditure of public funds by the city. The city responded that the requester had previously been afforded the opportunity to inspect city records. At page 4 of OAG 89-81, the Attorney General observed:
Although [the] requests generally cover a broad range of records, this latest request describes, with reasonable particularity, categories of documents he wants to inspect. The categories of records he describes are those of generally recognized public recordation subject to public scrutiny in a city clerk's office.
In particular, this office noted that "salary or wage information of public employees is subject to scrutiny." OAG 89-81, p. 4. Clearly, this principle extends to public officials such as the mayor and city council or commission members. See, for example, OAG 86-75, p. 3 (holding that "accountability in the expenditure of funds is required of governmental officers at all levels of government. One of the means by which such accountability is established is by requiring governmental officers to set forth what is being expended in salaries to operate their public offices in the public's interest"). Based on these decisions, and numerous other decisions mirroring them, we conclude that the City of Russell Springs "must make a good faith effort to make available to [Mr. Hare] for his inspection [and copying] records that conform to his requests." OAG 89-81, p. 4. 1 If no such records exist, the city is obligated to affirmatively so state. OAG 90-26, p. 4 (holding that "if a record of which inspection is sought does not exist, the agency should specifically so indicate").
There is nothing in the record before us which suggests that Mr. Hare's request is duplicative in nature. KRS 61.872 provides that "any person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Nevertheless, the Attorney General has recognized that "repeated requests for the same record may become unreasonably burdensome or disrupt the agency's essential functions." 95-ORD-47, p. 6, 7. Thus, in 95-ORD-105, 95-ORD-47, and OAG 92-91, this office held that unless the requester could "explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records," public agencies could properly deny duplicative requests. 95-ORD-105, p. 7. These decisions were premised on the notion that "to produce . . . records once entails some inconvenience to the agency; to produce them three and four times requires a level of 'patience and long-suffering' that the legislature could not have intended." OAG 92-91, p. 6. Ms. Buchanan indicates that Mr. Hare has inspected city records in the past, but does not state that he has inspected and received copies of these particular records. It is the opinion of this office that in the absence of proof that Mr. Hare's request is duplicative in nature, the City of Russell Springs is obligated to disclose records setting the mayor's and council or commission members' salaries to him.
Nor is there any proof in the record before us that Mr. Hare's request places an unreasonable burden on the city. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
With reference to this provision, the Attorney General has observed:
In determining whether a series of records requests is unreasonably burdensome, or is intended to disrupt an agency's essential functions, and thus warrants invocation of KRS 61.872(6), we must weigh two competing interests: that of the public in securing access to agency records in order to insure effective agency oversight, and that of the agency in successfully executing its public function. Ultimately, of course, the burden of proof rests with the agency. "This burden is not sustained by the bare allegation that the request is unreasonably burdensome. "
96-ORD-209, p. 5. The City of Russell Springs does not allege that Mr. Hare's requests have become unreasonably burdensome or offer any proof to support this view. We therefore find that there is no legally defensible basis upon which the city can deny him access to these records. The City is directed to take immediate action to locate the records Mr. Hare seeks, and to afford him access to, and copies of, those records.
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.
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