Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. 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 Ludlow violated the Open Records Act in its handling of Donald J. Ruberg's September 30, 1999, request for copies of "any and all minutes of the City of Ludlow that mention Michael R. Moehlman during the calendar year 1999." For the reasons that follow, we find that although the city failed to comply with the procedural requirements of the Act in its handling of Mr. Ruberg's records application, it was not obligated to mail him copies upon request inasmuch as he works in the county where the records are maintained, and he failed to precisely describe the records he wished to access by receipt of copies.
In his October 18 letter of appeal, Mr. Ruberg complained that he had received no response to his September 30 request. The city responded, through its attorney, Peter J. Summe, that Mr. Ruberg represented a former city employee in ongoing litigation. Mr. Summe stated that "there have been verbal requests that [Mr. Ruberg] be allowed to come to the city to review documents and Mr. Ruberg has been told that would be the preferred method since there would be a lot of time involved in going through the documents." In closing, Mr. Summe asserted, "The city has not denied the [requester] access to the public records and the [requester] knows that he can get what he wants by going to the city building." Mr. Summe did not state that any of the city's communications with Mr. Ruberg concerning this open records request had been reduced to writing. To this extent, the City of Ludlow's handling of Mr. Ruberg's request was procedurally deficient.
KRS 61.872(2) imposes certain obligations on a person who wishes to inspect public records, and permits the agency's custodian of records to "require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.880(1) imposes a corollary duty on public agencies in responding to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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 an agency may exercise its discretion in not requiring a written request for records from the applicant, it is not relieved of its obligation to issue a written response which conforms to the requirements of KRS 61.880(1) to any open records request, regardless of whether the request is communicated orally or in writing. As we noted in 93-ORD-125, at page 5, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request."
Mr. Summe does not refute Mr. Ruberg's statement that the City of Ludlow failed to issue a written response to Mr. Ruberg's September 30 written request. He has not furnished us with a copy of any such written response to rebut this allegation. On this basis, we must conclude that the City of Ludlow violated KRS 61.880(1) by failing to respond to Mr. Ruberg's request in writing, and within three business days of receipt of that request.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996) (holding that "the language of the statute directing agency action is exact"). We urge the city to review the cited provision to insure that future responses conform to the Open Records Act.
We do not find, however, that the city's refusal to furnish Mr. Ruberg with copies of the records identified in his request constitutes a violation of the Act since it has afforded him, verbally at least, an opportunity to conduct an on-site inspection of those records. KRS 61.872(3) establishes guidelines for records inspection under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) 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.
The Open Records Act contemplates records access by one of two means: on-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. An applicant like Mr. Ruberg, who lives or works in the same county where the public records are located, may be required to inspect the records prior to receiving copies. The City of Ludlow is located in Kenton County as is Mr. Ruberg's Covington law office. The city may, therefore, require him to conduct an on-site inspection of the records prior to furnishing him with copies of those records.
Assuming, for the sake of argument, that Mr. Ruberg lived and worked in a county other than the county where the public records were located, we believe that the city would not be required to honor his request for "all minutes of the City of Ludlow that mention Michael R. Moehlman during the calendar year 1999." As noted above, persons who wish to exercise their right of inspection by receipt of copies are required to "precisely describe [] the public records, " and those records must be "readily available within the public agency. " KRS 61.872(3)(b). Thus, KRS 61.872(3)(b) places a greater burden on persons who wish to receive copies to describe "in definite, specific, and unequivocal terms" the desired records. 97-ORD-46, pp. 2,3. Persons who wish to conduct on-site inspection of public records need only "identify them with sufficient clarity to enable the public agency to locate and make them available." OAG 89-8, p. 4.
Although Mr. Ruberg's request was sufficiently specific to satisfy the latter standard, we do not believe that it satisfies the former standard. Because Mr. Ruberg did not, or could not, identify the minutes of specific meetings to which he desired access, he must expend his own time and energy in reviewing all of the 1999 City of Ludlow minutes in order to locate and extract those which contain references to his client, Mr. Moehlman. 97-ORD-41, p. 6, citing OAG 76-375, p. 4. For this reason as well, we believe that the City of Ludlow did not violate the Open Records Act in refusing Mr. Ruberg's request for copies of 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.