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 Campbellsville Municipal Water & Sewer System violated the Open Records Act in its disposition of John Humphress's November 18, 1999, request for various records relating to his account, and to the operation of the Water & Sewer System generally. For the reasons that follow, we find that the Water & Sewer System's responses to Mr. Humphress's requests were procedurally deficient, but in all material respects substantively correct.
On November 18, Mr. Humphress simultaneously tendered to the agency's custodian of records, Ed Nash, and the Small Claims Court for the Eleventh Judicial Circuit, a request for access to:
. records pertaining to Mr. Humphress and 116 Kensington Way (his address), including log sheets, minutes of meetings, or inter-office notes;
. records pertaining to meter number 485045;
. insurance policies;
. records of employees "that [sic] have been involved with said account";
. accounting records pertaining to this account and "info on software. "
Mr. Humphress submitted his request two days after he initiated a civil action against the Water & Sewer System.
The parties' narratives of subsequent events diverge at this point. Mr. Humphress maintains that he unsuccessfully attempted to secure the documents identified in his request on a November 23 visit to the agency's office. Agency counsel, John D. Bertram maintains that he conversed by telephone with Mr. Humphress on November 19 and 22 on issues relating to the pending litigation and his records request, assuring Mr. Humphress that all nonexempt records would be released to him on a date to be determined. Additionally, Mr. Bertram maintains that some records were released to Mr. Humphress on November 23, and that he was advised on that date that Mr. Bertram was preparing a formal response to his request. Mr. Humphress disputes these statements.
On November 24, the Water & Sewer System filed in the Taylor Circuit Clerk's office a document styled "Response to Request for Records." A copy of the document was sent to Mr. Humphress. In the response, the agency questioned whether Mr. Humphress's request was intended to constitute an open records request or a discovery request ancillary to the pending civil litigation. Nevertheless, the agency agreed to release all nonexempt records relating to Mr. Humphress and his account. The agency objected to disclosure of:
Information which does not fall within the parameters of the Open Records Act, including, but not limited to, log sheets, minutes of meetings, insurance records, employee records, and software documentation.
Mr. Bertram argued that these requests "exceed[] the boundaries of the Open Records Act and are unrelated to the determination by this Court of the merits of the Plaintiff's claim."
On November 29, the Water & Sewer System supplemented its response with a "Notice of Confirmation of Compliance with Request for Records" filed in the small claims court, and copied to Mr. Humphress. The agency stated that it had complied with the three day deadline in responding to Mr. Humphress's request, and that it had, or would, release to Mr. Humphress records relating to him and his address, meter number 485045, and the agency's insurance policy. The agency denied his request for inter-office notes on the basis of "the preliminary documents exception," and employee records on the basis of the privacy exception. Further, the agency denied his request for software information based on the argument that those records are confidential and proprietary.
Although the facts giving rise to this appeal are disputed, the records demonstrates that Mr. Humphress submitted a written request for access to the records of a public agency on November 18, and that the agency responded in writing on November 24, supplementing that response on November 29. Neither of these responses conformed to the procedural requirements of the Open Records Act set forth at KRS 61.880(1), but the position that the Water & Sewer System ultimately took relative to disclosure of the records identified in Mr. Humphress's request was substantively correct.
Much of the confusion associated with Mr. Humphress's request and subsequent appeal are attributable to the fact that he initiated legal action against the Campbellsville Water & Sewer System shortly before he submitted his request for records, and that the Water & Sewer System was unsure whether to treat his request as an open records or discovery request. The tension between the Open Records Act and the Rules of Civil Procedure governing pretrial discovery has been the subject of numerous open records decisions. In 97-ORD-163, the Attorney General summarized the duties of a public agency in responding to an open records request submitted to a party who has sued, or been sued by, the agency, recognizing that the agency "is not relieved of its obligations under KRS 61.880(1) in the presence of litigation. . . ." 97-ORD-163, p. 3. The Attorney General also recognized, however, that "a public agency cannot, in an open records appeal, be compelled to produce properly excludable public records pertaining to civil litigation to a party when those records are excluded from pre-trial discovery by the Rules of Civil Procedure. " 97-ORD-163, p. 5. A copy of 97-ORD-163 is attached hereto and incorporated by reference. Mr. Humphress and the Water & Sewer System should be guided by the observations contained therein in future open records exchanges.
With respect to the procedural irregularities in the agency's responses, we direct the party's attention to KRS 61.880(1). That statute establishes procedural guidelines for agency response to an open records request, and provides as follows:
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.
The Water & Sewer System's original response to Mr. Humphress's request was issued on November 24, four business days after he submitted the request. More importantly, however, in neither that response, nor the supplemental response issued shortly thereafter, did the Water & Sewer System include a statement of the specific exception authorizing the withholding of the records and a brief explanation of how the exception applies to the records withheld. For example, a hypothetically proper response to Mr. Humphress's request for inter-office notes would be:
Your request for inter-office notes is denied on the basis of KRS 61.878(1)(i) and (j). The June 15 telephone message prepared by the office receptionist is a preliminary note, and the August 4 and September 21 inter-office communications from John Doe to Mary Roe are preliminary memoranda in which opinions are expressed and policies formulated, and were not incorporated into final agency action.
As the Kentucky Court of Appeals observed in
Edmondson v. Alig, Ky.App., 926 S.W.2d 856 (1996):
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. [A] limited and perfunctory response . . . [does not] even remotely comply with the requirements of the Act--much less . . . amount[] to substantial compliance.
Edmondson at 858.
Nevertheless, it is our opinion that the Water & Sewer System articulated a legally supportable basis for partially denying Mr. Humphress's request. KRS 61.878(1)(i) and (j) authorize nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
On the issue of access to preliminary, drafts, notes, and inter-office communications, this office has observed:
KRS 61.878(1)(i) and (j) are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within the agency and between agencies. OAG 86-64; OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; and OAG 90-97. The purpose underlying these exemptions is discussed at page 4 of OAG 88-85, where this office opined:
If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
94-ORD-118, p. 2. Unless the records withheld by the Water & Sewer System were incorporated into final action of that agency, they did not forfeit their preliminary characterization and need not be released.
Whether the employee records which Mr. Humphress requested are excluded from public inspection by operation of KRS 61.878(1)(a) is a closer question. KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." In an early open records opinion, this office recognized that KRS 61.878(1)(a) "applies only to matters entirely unrelated to the performance of public employment." OAG 78-133, p. 3. "The private rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43, p. 3. Paraphrasing the court's holding in
Board of Education of Fayette County v Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981), in OAG 85-88 we stated that "much of information found in . . . personnel folders deals with items and facts of a personal nature and no public interest would be served by complete disclosure. " OAG 85-88, p. 2. In a latter opinion, we summarized our views:
A personnel folder of a public employee, by its very nature, is a mixture of documents which are subject to inspection and which may be excluded from . . . inspection. Rather than a "shotgun" approach or engaging in a . . . fishing expedition, the request should . . . [be] specific as to the kinds of records and documents which are the subject of the request to inspect." OAG 88-53, p. 3.
Because the personnel files which Mr. Humphress requested no doubt contain this mixture of exempt and nonexempt records, it is incumbent on him to "specify the particular documents within such files to be inspected." OAG 85-88, p. 3.
We do not reach the issue of whether the Water & Sewer System properly denied Mr. Humphress's request for "software info" on the grounds that that information is confidential and proprietary. This office has long recognized that a public agency is not obligated to honor a request for information, as opposed to a properly formulated request for specifically described public records. For example, in 93-ORD-51, this office held that the Open Records Act:
was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-335, OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the Law provides for inspection of reasonably identified records.
93-ORD-51, p. 3. Mirroring this view, in OAG 87-84 we observed:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3. These decisions were premised on the language of the statutes themselves, including KRS 61.871 (providing that "free and open examination of public records is in the public interest" ), KRS 61.872(1) (providing that "all public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "any person shall have the right to inspect public records ") (emphasis added). Because Mr. Humphress did not frame this portion of his request as a request for records, the Water & Sewer System was not obligated to honor it.
Mr. Humphress concedes that some records have been released to him, but does not identify those which remain in dispute. The Campbellsville Municipal Water & Sewer System maintains that all existing, nonexempt records that are responsive to his request have been released. "This office cannot . . . adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 9. In the absence of evidence that the Campbellsville Municipal Water & Sewer System is concealing records which are responsive to Mr. Humphress's request, we must assume that the agency has acted in good faith. Here, as in OAG 89-81, we are hopeful that "any dispute regarding the records can be worked out through patient consultation and cooperation between the parties." OAG 89-81, p. 9.
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.