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 Kenton County Fiscal Court violated the Open Records Act in responding to John Ellenbogen's November 22, 1999, to "inspect all the original documents of the papers that were handed out at the "November 20, 1999, fiscal court meeting in Elsmere. For the reasons that follow, we find that the fiscal court's response constituted a partial violation of the Open Records Act.
In a response dated December 8, 1999, Assistant Kenton County Attorney and Records Custodian Brandon N. Voelker sent Mr. Ellenbogen copies of "the materials handed out at the public hearing in Elsmere on November 20, 1999." Mr. Voelker noted that although Mr. Ellenbogen was "entitled to copies of the originals," he did "not have an absolute right to view the originals." It was Mr. Voelker's position that "the decision on how to comply [with an open records request] rests with the Fiscal Court, not [the requester] ." This position was based on his interpretation of KRS 61.872(3), which he construed to mean that "a custodian of records may fulfill a request by granting a right to inspect or by sending copies of the public records through the mail ." (Emphasis in original.) Mr. Voelker advised Mr. Ellenbogen that the Kenton County Fiscal Court would respond to his requests by sending him copies of the record identified in his requests through the mail. This appeal followed.
In his letter of appeal, Mr. Ellenbogen questions the timeliness of the fiscal court's response, and its unilateral decision to discharge its duties under KRS 61.872(3) by sending copies, rather than permitting inspection, of public records. Finally, Mr. Ellenbogen questions whether the fiscal court may properly require him to submit his requests by means of first class mail, as opposed to hand delivery or facsimile. In closing, he notes that the records which were mailed and billed to him were not the records which he originally requested, and challenges the fiscal court's ability to charge him for these records.
In a supplemental response directed to this office, Mr. Voelker elaborated on the fiscal court's position. He explained:
KRS 61.872(3) states that 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 policy of the Kenton County Fiscal Court is to provide copies through the mail. The word "or" gives the Fiscal Court this right. The statute does not specify whether the choice belongs to the individual or the government agency, but a plain reading of the statute illustrates that an open records request may be fulfilled in two ways.
KRS 61.872(6) allows for a public agency to deny an open records request "if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. " . . . Mr. Ellenbogen believes we are falsifying the documents we give and show him. That is why he demands to have access to a computer.
Allowing Mr. Ellenbogen to view a computer monitor would disrupt essential functions of Kenton County government. We are not denying his request under subsection (6), but rather limiting Mr. Ellenbogen's requests to being fulfilled by mail. Even if it is determined that Mr. Ellenbogen has an absolute right to inspect, subsection (6) allows the Fiscal Court to deny his request to inspect. Furthermore, matters that are not public records may be contained on the computers. For example, the employee who uses the computer may have private matters on his or her computer. Lastly, as a matter of necessity, Mr. Ellenbogen cannot access the County's computers. Computer viruses are numerous and he may damage important government files. That is why I simply asked him to request a specific document and a copy would be sent to him.
A review of Mr. Ellenbogen's Open Records Request shows that he did not specifically request a document or set of documents. KRS 61.872(2) requires that a person describe the documents to be inspected. Mr. Ellenbogen's request does not adequately describe any documents that may or may not be found on a computer screen.
We find that the Kenton County Fiscal Court's position is only partially consistent with the Open Records Act.
It is the opinion of this office that the fiscal court violated KRS 61.880(1) by failing to issue a written response to Mr. Ellenbogen's request within three business days, and that it erred in adopting a policy which requires Mr. Ellenbogen, or any other requester, to submit his request by mail. However, although we have recognized that, in general "the decision whether to conduct an on-site inspection rests with [the requester] . . . [and] unreasonable restrictions upon inspection may not be imposed," 97-ORD-12, p. 6, we find that when there is a mechanism in place for providing public access to public records, without resorting to on-site use of agency computers, the agency discharges its duty to access under KRS 61.872 by utilizing the alternative mechanism, and the requester's right of inspection is not abridged. We therefore conclude that the fiscal court did not violate the Open Records Act by affording Mr. Ellenbogen access to printouts of the records which were responsive to his request rather than permitting him to inspect the "original documents" which were stored in its computer database. In such instances, however, we do not believe that the agency can recover its actual costs for reproduction when copies are not requested.
KRS 61.880(1)
KRS 61.880(1) contains procedural guidelines for agency response 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.
Mr. Ellenbogen's request was faxed to the Kenton County Judge/Executive on November 22, 1999. Mr. Voelker's response was issued on December 8, 1999. Thus, approximately ten business days elapsed between the date of the request and the date of the response. The Kenton County Fiscal Court's failure to respond within three business days constituted a procedural violation of the Act.
KRS 61.872(2)
KRS 61.872(2) provides, in relevant part, that an application for public records "shall be hand delivered, mailed, or sent via facsimile to the public agency. " The Open Records Act clearly authorizes a requester to employ methods of communicating his request other than the mail. Mr. Ellenbogen elected to communicate his request by facsimile. Like any other requester, he must be permitted to do so. See 96-ORD-209 (recognizing that all requesters under the Open Records Act "stand in the same shoes"). However, having been notified that all future requests for records of the Kenton County Fiscal Court should be directed to Mr. Voelker at the appropriate fax number, he should thenceforward act accordingly. Any existing or proposed policy that is contrary to the plain language of KRS 61.872(2) constitutes a violation of the Open Records Act.
KRS 61.872(3)
KRS 61.872(3)(a) and (b) provide:
(3) A person may inspect the public records:
In construing these provisions, the Attorney General has observed:
KRS 61.872(1) provides that "all public records shall be open for inspection by any person , except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that " any person shall have the right to inspect public records ." KRS 61.872(3)(a) and (b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. . . ."
Subject to the provision that the agency may adopt rules and regulations in conformity with the Open Records Act to provide full access to public records, to protect public records from damage and disorganization, and to prevent excessive disruption of its essential functions, the decision whether to conduct an on-site inspection of the records rests with [the requester] . KRS 61.876(1). "Unreasonable restrictions upon inspection may not be imposed." OAG 89-81, p. 4.
97-ORD-12, p. 6.
Since this decision was issued, both the courts and this office have wrestled with the practical difficulties associated with on-site inspection of electronically stored records. For example, in 99-ORD-96 the Attorney General affirmed the Department of Education's denial of a request to access the department's computers to search for records of which it had denied the existence. There, we observed:
The Open Records Act does not permit a person to search through an agency's files to determine the truth of an agency's response that it does not have the requested records or that they do not exist. . . . The Open Records Act is not a search warrant statute. It is a records statute.
99-ORD-96, p. 5.
More to the point, in Commonwealth of Kentucky, Department of the Treasury v. Mindy Hines , 98-CI-00134 and 98-CI-0345 (Franklin Circuit Court, January 21, 1999), the Franklin Circuit Court expressed its reluctance to condone unfettered public access to an agency's computers, and records stored therein. The court reasoned:
Allowing individuals access to the Treasury's computer database for an unlimited amount of time [might in fact be unduly burdensome] . . . . It is easy to see how such requests, if repeatedly made to the Treasury or made by an increasing number of people, could quickly become so burdensome that the Treasury is unable to efficiently perform its job. . . . The same is true with respect to the computer database --would the Treasury be expected to abdicate use of its computers to the public or to spend its annual budget providing more computers, rather than spending its budget . . . [discharging its statutory duties]? These are perhaps the reasons that the Treasury opted to provide . . . [an alternative means of access]. We find that allowing the public to make . . . requests of the Treasury [to access its computer], when the Treasury already has in place a mechanism for providing this information to the public is unduly burdensome on the Treasury.
We believe that the reasoning of this decision may be extended to the instant appeal.
The Kenton County Fiscal Court furnished Mr. Ellenbogen with hard copies of the records that were responsive to his request. He argues that the records disclosed are not responsive, and demands that he be permitted to inspect "the original documents of the papers," insisting that this is not synonymous with a demand to view the fiscal court's computer monitors. His arguments, however, beg the questions: What are, conceptually speaking, the "original documents" when we are dealing with electronically stored records, and how can they, practically speaking, be inspected if not by means of accessing the agency's computers?
It is our opinion that because an alternative mechanism for inspection of the records exists, and was utilized by the Kenton County Fiscal Court, namely, printing out, in hard copy format, records containing the same information that was distributed in hard copy format at its November 20 meeting in Elsmere, unreasonable restrictions upon inspection were not imposed. As in 99-ORD-96, we reject that argument that the fiscal court must permit unfettered access to its computers so that Mr. Ellenbogen can prove a negative: That the records he requested were not the records he received. And, as in Department of the Treasury , above, we find that because there was a mechanism in place for providing Mr. Ellenbogen access to the records identified in his request without resorting to on-site use of the fiscal court's computers, the Kenton County Fiscal Court discharged its duty to permit access under KRS 61.872 by utilizing the alternative mechanism, and did not abridge Mr. Ellenbogen's right of inspection.
Because he did not originally request copies of the records, but was mailed copies as an alternative to on-site inspection via computer access, we do not believe the fiscal court could properly assess Mr. Ellenbogen a reproduction and/or postage charge. Mr. Ellenbogen should have been permitted to inspect the hard copy printouts on-site. Only upon request for copies should he have been assessed the appropriate charges.
This decision should not be construed to authorize, for all intents and purposes, a blanket prohibition on direct public access to an agency's electronically stored records using the agency's computers. Clearly, occasions may arise when use of the agency's computers is the only way to meaningfully exercise the right of on-site inspection. On such occasions, and as noted above, the agency is empowered to take necessary measures to protect its records from damage and disorganization, and to prevent excessive disruption of its essential functions. KRS 61.876(1). Mr. Ellenbogen's appeal does not present such a case. The question of whether on-site inspection of agency records by means of public access to agency computers is required must be decided on a case by case basis, taking into consideration the specific facts and circumstances of each case.
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.