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 Fort Mitchell violated the Open Records Act in responding to John Ellenbogen's February 2, 1999, request to inspect and copy:
the existing computer files of
a) all currently effective and valid City Ordinances put into effect by the Council of the City of Fort Mitchell, KY, which are applicable to citizens and others within the boundaries of the City of Fort Mitchell, KY and
b) all currently valid Resolutions of the Council of the City of Fort Mitchell, KY and
c) all Municipal Orders, which are currently effective, and
d) all Executive Orders, which are currently effective.
For the reasons that follow, we find that the city properly denied Mr. Ellenbogen's request.
In his February 2 request, Mr. Ellenbogen expressly stated that he wished to obtain a copy of the computer files identified in his request on 3.5" Floppy Disks, asking that the city advise him in which format the files were stored so that he could decide if he "preferred the files in that format or in the ASCII format. " In its February 8 response, the City of Fort Mitchell denied Mr. Ellenbogen's request for existing computer files on the basis that it "does not maintain the records requested ? in electronic format. " City clerk Amie M. Wells elaborated:
The City maintains such records in hard copy format. KRS 61.874(2) requires that the City make available copies of public records in standard electronic format where the City maintains such records in electronic format.
It was the city's position that because it does not maintain these documents in electronic format, but instead maintains them in hard copy format, Mr. Ellenbogen's request must be denied.
Ms. Wells acknowledged that the city maintains "drafts and unofficial copies of some of the documents" identified in Mr. Ellenbogen's request, but asserted that these documents "are preliminary drafts and are not the official public records of the City [because they] may be incomplete, not currently in effect and may have been amended, supplemented, or repealed." Ms. Wells reminded Mr. Ellenbogen that his February 2 request mirrored his November 27 request, and that the city had honored his earlier request by making the records available for inspection in hard copy format. She indicated that these records were still available for inspection and copying in hard copy format during regular business hours at the City of Fort Mitchell City Building.
In his letter of appeal, Mr. Ellenbogen argued that because the printed volume containing city ordinances, council resolutions, municipal orders, and executive orders "is considerable, and not readily accessible for logical manual searches, the City of Fort Mitchell, KY is deliberately obstructive in refusing to provide copies in existing computer format ? for the sole reason of preventing the public to exercise its right of oversight of governmental operations." In his view, the fact that the city does not maintain "computer files in an orderly manner as a reasonable administration should ? is no legitimate reason to refuse copies of the computer files which do exist on several city computers." He characterized the city's argument that the computer files are not the official record as "a smoke screen in the late 1990's, since the printed format [the city] maintains is an exact printout of the computer files."
Prompted by Mr. Ellenbogen's appeal, city attorney Robert Ziegler elaborated on the city's position in a letter to this office dated February 24, 1999. Mr. Ziegler explained:
All of the currently effective and valid City ordinances, resolutions, municipal orders and executive orders requested by Mr. Ellenbogen are maintained by the City in standard hard copy format and copies thereof are made available without charge to persons requesting same. These ordinances, resolutions, municipal orders and executive orders are dated, complete, bear the signature of the mayor and contain all of the attachments referenced in the ordinance.
With respect to the drafts and unofficial copies of some of the records which are maintained in computer format, Mr. Ziegler observed:
Such documents are preliminary drafts and are not the official public records of the City. They are not executed, dated nor have the appropriate attachments appended to them. Many of the requested documents are prepared by third party attorneys, state agencies and other local agencies and not by the City.
Mr. Ziegler reiterated that these documents "may be incomplete, not currently in effect and may have been amended, supplemented or repealed." He maintained that upon this basis the City's denial of Mr. Ellenbogen's request for computer files of currently effective and valid city ordinances, council resolutions, municipal orders, and executive orders was proper. We agree.
In 99-ORD-12, this office addressed the question whether the City of Fort Mitchell complied with the Open Records Act in responding to Mr. Ellenbogen's request for "all current ordinances and other laws put into effect by the Council of the City which are applicable to citizens and others within the boundaries of the City." We answered this question affirmatively, concluding that the city discharged its duties under the Act by making the records available for inspection in a hard copy format. Although the issue of access to the records in electronic format was not properly before us, because Mr. Ellenbogen had not requested them in that format, we nevertheless noted that KRS 61.874(2)(a) was dispositive of this issue. That statute provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
Citing 95-ORD-12, we recognized that "if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester." 99-ORD-12, p. 6. The obvious corollary of this position is, of course, that if the nonexempt records exist in only standard hard copy format, the agency must permit inspection of, and copying in, that format. KRS 61.872(2) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. "
Mr. Ellenbogen counters that the city does, in fact, maintain these records in an electronic format, and that it has effectively acknowledged this fact. We are not persuaded by this argument. What the city has acknowledged is that unofficial, unexecuted drafts of current and past ordinances, resolutions, municipal orders, and executive orders are stored in the computers of the third party attorneys, state agencies, and other local agencies by whom they were authored. There is no searchable and comprehensive database of these records as officially adopted by the legislative body. While these unexecuted drafts may, in some cases, mirror the ordinance, resolution, or order that was adopted, they do not represent final action of the legislative body because they are not adopted and executed. To this extent, they retain their preliminary characterization, and qualify for exclusion from public inspection under KRS 61.878(1)(i), regardless of where they are reposited, as "preliminary drafts."
KRS 83A.060 governs adoption of ordinances by cities. Tht statute establishes guidelines for the maintenance of records of final action of the legislative body. It provides, in part:
(8) Every action of the city legislative body shall be made a part of the permanent records of the city and on passage of an ordinance the vote of each member of the city legislative body shall be entered on the official record of the meeting. The legislative body shall provide by ordinance for the maintenance and safekeeping of the permanent records of the city. The person assigned this responsibility and the presiding officer shall sign the official record of each meeting. All ordinances adopted in a city shall, at the end of each month, be indexed and maintained in the following manner:
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(10) A city may specify by ordinance additional requirements for adoption of ordinances in greater detail than contained herein, but a city shall not lessen or reduce the substantial requirements of this section or any other statute relating to adoption of ordinances.
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(11) The legislative body may adopt municipal orders. Orders shall be in writing and may be adopted only at an official meeting. Orders may be amended by a subsequent municipal order or ordinance. All orders adopted shall be maintained in an official order book.
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(12) All ordinances, and orders of the city may be proved by the signature of the city clerk; and when the ordinances are placed in a printed composite index or code of ordinances by authority of the city, the printed copy shall be received in evidence by any state court without further proof of the ordinances.
The City of Fort Mitchell has apparently complied with this statute by compiling all current ordinances, resolutions, and orders in a single hard copy volume which is available for public inspection and copying. KRS 83A.060 does not require the city to maintain a comprehensive database of these records to facilitate ready access by means of an electronic search. However "unreasonable" this may seem to Mr. Ellenbogen, it is clear that the law does not currently envision automated access to records of city legislative action. We therefore find tht the city properly denied Mr. Ellenbogen's request for computer files of its ordinances, resolutions, and orders on the basis that it does not maintain the records in an electronic format.
We note, in closing, that the city's response was procedurally deficient. KRS 61.880(1) provides, in part:
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.
Although the city of Fort Mitchell articulated a basis for denying access to "computer files" of ordinances which it maintains, characterizing them as "preliminary drafts," the city did not cite the relevant exception supporting nondisclosure, namely KRS 61.878(1)(i). We urge the city to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
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.