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 Kentucky Community and Technical College System violated the Open Records Act in denying Debra K. Lemaster's March 18, 1999, open records request. For the reasons that follow, we find that KCTCS improperly denied the request.
In her handwritten request, which appeared at the bottom of the second page of a March 15, 1999, denial letter issued by KCTCS to Pamela Sapp, Ms. Lemaster asked for copies of "the documents that are highlighted, " indicating that she was "the employee requesting these." The highlighted portion of the denial letter read as follows:
are records that were denied in Open Records Request No. 99-096; are medical related records for an individual that you are not entitled to inspect under KRS 61.878(1)(a); or involve other records provided to KCTCS that do not relate directly to your March 4, 1999, open records request.
Although the request did not contain Ms. Lemaster's signature, her name was printed legibly on the document.
In a response dated March 25, 1999, Sandra Gubser, official custodian of records for KCTCS, denied Ms. Lemaster's request, advising her that the Open Records Law "requires, among other things, that an applicant for records precisely describe the public records to be sent." Because Ms. Lemaster's request did not satisfy this requirement, Ms. Gubser explained, the request was denied "pursuant to KRS 61.872(3)(b)." This appeal followed.
In a supplemental response dated April 12, 1999, James M. Baker, legal counsel to KCTCS, explained:
When Ms. Lemaster's request was evaluated for a response, there were serious concerns regarding the way the request was made. These concerns included the fact that the first page of Ms. Gubser's March 15, 1999, letter to Ms. Sapp was not part of Ms. Lemaster's request that was received on March 22, 1999; the highlighted portion of page 2 of that letter did not include a reference to the "fourteen (14) page March 5, 1999, fax to KCTCS"; did not include a copy of Ms. Gubser's decision to Ms. Sapp in Open Records Request No. 99-096; and did not include a copy of Ms. Sapp's March 12, 1999, fax to the Custodian of Records KCTCS.
Because of the dispute regarding the fourteen (14) page March 5, 1999, fax, KCTCS wanted to insure that these records be properly requested under KRS 61.870 to 61.884 before releasing the records.
It was KCTCS's position that Ms. Lemaster's March 23, 1999, open records request was "technically deficient because it lacked sufficient specificity or reasonable particularity in precisely describing the public records she was requesting. " We do not agree.
The Open Records Act requires, generally, that a requester "describe" the records he wishes to inspect. KRS 61.872(2). 1 Where, however, a requester asks that the public agency furnish him with copies of the records through the mail, the Open Records Act places an additional burden on him. Pursuant to KRS 61.872(3)(b), 2 he must "precisely describe []" the records which he wishes to access by receipt of copies through the mail. In construing KRS 61.872(2), the Attorney General has consistently recognized:
Although the purpose and intent of the Open Records Act is to permit the "free and open examination of public records ...," this right of access is not absolute. [KRS 61.871]. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review?
If the agency is to provide access to public documents the person seeking to inspect those documents must identify them with sufficient clarity to enable the public agency to locate and make them available .
97-ORD-46, p. 3 and 4 (emphasis added). The Attorney General has thus defined what constitutes an adequate "description" for purposes of on-site inspection of public records pursuant to KRS 61.872(2).
This office has also articulated a standard for determining if a requester has described the records he wishes to access by mail with "precision." At page 4 of 97-ORD-46, we commented:
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail .
(Emphasis added.) This is the standard we apply here.
In her request, Ms. Lemaster asked that KCTCS furnish her with copies of:
records that were denied in Open Records Request No. 99-096; are medical related records for an individual that you 3 are not entitled to inspect under KRS 61.878(1)(a); or involve other records provided to KCTCS that do not relate directly to your 4 March 4, 1999, open records request.
Ms. Lemaster indicated that she was the employee whose records Ms. Sapp had unsuccessfully requested. The language she used to describe the records was KCTCS's own language which KCTCS had used in its March 15 denial of Ms. Sapp's March 11 open records request. While such language might be characterized as indefinite, nonspecific, and equivocal if taken out of context, it is sufficiently precise when it appears in its original context. The addressee's name and the date, at the top of the page, clearly identify the letter as KCTCS's March 15 denial of Ms. Sapp's request, with or without supporting documentation. KCTCS knew what records it was referring to in that letter of denial. It follows that KCTCS knew what records Ms. Lemaster was referring to when she highlighted the relevant portion of that letter as a means of identifying the records she wished to access by receipt of copies through the mail. In our view, her request was definite, specific, and unequivocal. To hold otherwise would be tantamount to elevating form over substance.
Ms. Lemaster is the public employee who was the subject of the disputed records. Pursuant to KRS 61.878(3), she is entitled to inspect and to copy "any record including preliminary and other supporting documentation that relates to [her]." The records which she requested were precisely described and readily available within the public agency. We therefore find that KCTCS improperly denied Ms. Lemaster's request, and that it should, upon prepayment of reasonable copying charges, send her copies of the records identified in her March 18, 1999, request.
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 KRS 61.872(2) thus provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
2 KRS 61.872(3)(b), on the other hand, provides:
A person may inspect the public records:
By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
3 "You" refers to Pamela Sapp, the requester in KCTCS open records request number 99-096.
4 See footnote 3 above.