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 Carter County Fiscal Court violated the Open Records Act in responding to a series of requests submitted by Clifford Roe, a resident of Olive Hill who is currently involved in a dispute with the county involving the county's decision to close North Sandridge Road. Mr. Roe's requests relate to the decision to close the road. For the reasons that follow, we find that the fiscal court's responses to Mr. Roe's requests were in part violative of the Open Records Act.
In a letter dated November 2, 1999, Mr. Roe requested access to:
1. Records of Survey for portion of road to be closed on N. Sandridge Rd. in the Phillip Roe property[;]
2. Records for portions of road [not to be closed] on N. Sandridge Road in the Phillip Roe property[;]
3. Records of who done [sic] the survey work for the N. Sandridge Rd in the Phillip Roe property[;]
4. Records of the cost of the Survey done on the portion of N. Sandridge Rd. in the Phillip Roe property[;]
5. Records showing the vote taken in closing of said Road[;]
6. Records showing why the entire road in the Phillip Roe property was not closed.
Although identified as an open records request, by reference to KRS 61.870 to 61.884, Mr. Roe's November 2 request was apparently unsigned.
On November 4, 1999, Carter County Judge/Executive Alice J. Binion responded to Mr. Roe's request, advising him that the fiscal court would "require ten days to respond. . . ." "On November 16, Judge Binion notified Mr. Roe that his request would not be honored because he had failed to sign his request and print his name legibly on it, and because he had failed to describe the records to which he sought access "with sufficient specificity to enable the County to identify the records requested." Judge Binion suggested that Mr. Roe correct these deficiencies, assuring him that the county would then make the responsive records available for inspection.
On November 18, 1999, Mr. Roe resubmitted an identical request, but signed it and printed his name legibly on it. In an undated response, Judge Binion provided Mr. Roe with a copy of the survey, in satisfaction of requests 1 and 2; the name of the surveyor, in satisfaction of request 3; a record documenting the cost of the survey, in satisfaction of request 4; the minutes of the Carter County Fiscal Court meeting of July 13, 1999, in satisfaction of request 5; and the record documenting the decision reached by the Carter County Fiscal Court at its July 13 meeting, in satisfaction of request 6. As noted, it is unclear when this response was issued.
One day after he submitted his November 18 request, 1 Mr. Roe initiated this open records appeal, asserting that he had described the records he wished to inspect "to the best of [his] ability." In a supplemental response addressed to this office, Assistant Carter County Attorney Todd K. Trautwein defended the fiscal court's actions, maintaining that the fiscal court "has simply asked Mr. Roe to comply with its public records policy and to describe the record sought with sufficient specificity. " Mr. Trautwein noted the procedural irregularities in Mr. Roe's written applications for public records, and emphasized the general nature of his requests. He advanced the argument that:
Mr. Roe's records request did not identify the records with sufficient specificity to enable the County to identify the records requested; and Mr. Roe's records request identified documents by their general character and were "blanket requests."
Nevertheless, Mr. Trautwein acknowledged, "Carter County provided Mr. Roe with copies of identifiable records. . . ." In closing, Mr. Trautwein suggested that "Carter County's official records custodian has reason to believe that Mr. Roe's repeated requests are intended to create an unreasonable burden upon the County and are intended to disrupt other essential functions of the County" in contravention of KRS 61.872(6). He noted that since Mr. Roe's November 18, request, he has submitted two more records requests to the county.
It is the opinion of this office that the Carter County Fiscal Court erred in postponing action on Mr. Roe's November 2 request for ten days without explanation and without reference to KRS 61.872(5), and in characterizing Mr. Roe's requests as so nonspecific as to preclude the fiscal court from determining what records he wished to inspect. Were this the case, the fiscal court would have been unable to satisfy those requests as it has apparently now done. Conversely, we believe that the fiscal court acted consistently with the Open Records Act in requiring Mr. Roe to sign his request and print his name legibly on it, and that it has now fully discharged its duties under the Open Records Act, at least in relation to his November 18 request, by furnishing Mr. Roe with the existing responsive records.
We first address the issue of the timeliness of the Carter County Fiscal Court's response to Mr. Roe's November request. On November 4, Judge Binion notified Mr. Roe:
In response to your memo presented to the Carter County Deputy Judge/Executive November 2, 1999, requesting various records. We will require ten days to respond to this request [sic].
The County Judge offered no explanation for the fiscal court's inability to "notify in writing the person making the request, within the three (3) day period, of its decision" to comply with the request, or deny it on the basis of one or more of the exceptions. KRS 61.880(1). On this issue, the Attorney General has observed:
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
KRS 61.872(5) imposes an additional duty on public agencies which must delay access to public records because the records are not immediately available. That statute requires the agency to provide "a detailed explanation of the cause . . . for further delay and the place, time and earliest date on which the public record will be available for inspection. "
97-ORD-133, p. 3.
To the extent that the Carter County Fiscal Court failed to offer any explanation for its inability to notify Mr. Roe of its decision relative to his request within three business days of receipt of that request, we find that its actions constituted a violation of the Open Records Act. We urge the fiscal court to focus its energies on strict compliance with the letter of the Open Records Law.
With respect to Mr. Roe's procedurally correct November 18 application for public records, we find that the Carter County Fiscal Court improperly characterized the requests contained in the application as too nonspecific and general. In defining what constitutes an adequate description for on-site inspection, or receipt of copies, of public records, the Attorney General has stated:
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. OAG 89-81; OAG 91-58. Thus, in a series of opinions, we have held that "blanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58. Elaborating on this position, in OAG 89-8, at p. 2, we observed:
If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.
Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate "description" for purposes of on-site inspection pursuant to KRS 61.872(2). We have not, however, had occasion to articulate a standard for determining if a requester has described the records he wishes to access by mail with "precision."
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.
97-ORD-46, p. 3, 4.
In the appeal before us, the applicant's request for records was sufficiently definite, specific, and unequivocal to permit the Carter County Fiscal Court to locate the records and make them available. Even though Mr. Roe did not expressly request the survey, records documenting the cost of the survey, the minutes of the meeting at which the decision to close the road was reached, and the record reflecting that decision, the fiscal court provided him with these records. This is the clearest indicator that his request was framed with "sufficient specificity. " We therefore reject the Carter County Fiscal Court's argument that "Mr. Roe's records request did not identify the records with sufficient specificity to enable the county to identify the records requested."
Further, we reject the fiscal court's argument, in the absence of clear and convincing proof, that Mr. Roe's requests "are intended to create an unreasonable burden upon the County and are intended to disrupt other essential functions of the County" in contravention of KRS 61.872(6). That statute 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.
In construing this provision, the Attorney General has commented:
[KRS 61.872(6)] is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence, prompting this office to observe:
OAG 77-151, p. 3. We have also recognized, however, that:
OAG 76-375, p. 4. In determining whether an open records request is unreasonably burdensome, 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. A bare allegation that the request is unreasonably burdensome does not satisfy the requirement of the statute. 96-ORD-201; 96-ORD-193; 96-ORD-100; compare, 97-ORD-88.
98-ORD-87, p. 5, 6.
On the facts presented, we do not find that Mr. Roe's requests can be denied on the basis of KRS 61.872(6). As noted, mere invocation of the cited exception does not sustain the agency's burden. At the time of his appeal, Mr. Roe had submitted two more requests. 2 The fiscal court does not describe, with any degree of specificity, the volume of records implicated by these requests, the difficulty in accessing the records, or the problems associated with redacting exempt material from these records. Inasmuch as the burden of proof rests with the Carter County Fiscal Court, and the fiscal court failed to meet its burden, we find that it improperly invoked KRS 61.872(6).
However, we find that the fiscal court properly relied on KRS 61.872(2) in rejecting Mr. Roe's November 2 request on the basis of procedural noncompliance. That statute 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.
In construing this provision, 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. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
94-ORD-101, p. 3. We find no error in the refusal of the Carter County Fiscal Court to honor Mr. Roe's request until he complied with the requirements of KRS 61.872(2).
Finally, we find that the Carter County Fiscal Court has now discharged its duties under the Open Records Act by furnishing Mr. Roe with the existing records that are responsive to his properly framed open records requests. We urge the fiscal court to continue to work with Mr. Roe, in a spirit of cooperation, toward an amicable resolution of any open records issues which may arise hereinafter.
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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