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 Butler violated the Open Records Act in responding to a series of written questions submitted by William R. Tate, and an oral request for access to the city's ordinances. For the reasons that follow, we conclude that the city's responses were consistent with the Act, and affirm its actions.
Mr. Tate submitted his written questions to Mayor Delbert Reid at the city council meeting held on June 7, 1999. The city responded, through Mayor Reid and city attorney Ben Harter, on June 9, 1999, by furnishing Mr. Tate with written answers to his questions. Shortly thereafter, Mr. Tate appeared at the office of the city clerk, and requested access to "certain records referred to in [his] original list of questions and referred to again in the city's response." This dispute apparently centers on access to, or copies of, the city's ordinances. Mr. Tate asserts that on June 29, he was "informed by the city clerk that the mayor had instructed her to refuse [his] request for copies of certain city records and ordinances. " The city maintains that Mr. Tate was advised that the records "would be made available to him upon his written request. "
Responding on behalf of the city, Mr. Harter explained:
The custodian of the City's records has reason to believe that Mr. Tate's intention was to disrupt, harass and annoy City officials and employees. However, the City has not refused to allow Mr. Tate to inspect public records. The City does require that Mr. Tate comply with KRS 61.872.
When Mr. Tate presents a written request, as required by KRS 61.872, the City will respond.
Acknowledging that he had not submitted a written request for the ordinances, Mr. Tate argued, in rebuttal, that "the term 'all' is fairly specific and adequately describes the ordinances that [he] wished to review." Mr. Tate indicated that he had, that day, submitted a written request to inspect all of the City of Butler's ordinances currently in effect.
It is the opinion of this office that the City of Butler went above and beyond the statutory duty imposed on it by the Open Records Act in responding in narrative form to Mr. Tate's requests for information. The Attorney General has long recognized that "the purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. See OAG 76-375. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced.
See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19. Thus, the public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to nonexempt records, and not to require the compilation of information. Although the City of Butler was not statutorily obligated to do so, it honored Mr. Tate's request for information by furnishing him with narrative responses to his questions. We find no error in its actions.
Nor do we find error in the City of Butler's insistence that Mr. Tate submit his records request in writing. KRS 61.872(2) provides that the official custodian of records "may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." In analyzing this language, the Attorney General has observed:
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing.
94-ORD-101, p. 3; see also, OAG 76-588, p. 2 ("Public agencies may put into their regulations the requirement for written application . . ."). Adherence to this requirement behooves both the requester and the public agency. "Without a written record documenting these exchanges, this office is severely handicapped in its disposition of an open records appeal." 96-ORD-46, p. 3. Discrepancies and misunderstandings inherent to oral open records transactions are quickly resolved by an incontestable written record. We affirm the City of Butler's decision to require Mr. Tate to submit his request in writing. We do not address the propriety of its actions relative to the written request tendered after this appeal was commenced, any issues arising therefrom having not been properly presented to the Attorney General in an open records appeal.
We conclude by noting that the City of Butler has presented no evidence to support its claim that Mr. Tate's requests are being made for purposes of harassment. In an early open records decision, the Attorney General opined:
Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe 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. We have also recognized, however, that:
State 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 and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-375, p. 4. In determining whether a series of open records requests is intended to disrupt a public 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, and that of an agency in effectively executing its public function. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests are intended to disrupt its essential functions. Simply stated, the record does not, at this time, support the city's claim of harassment.
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.