Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kenton County Circuit Court violated the Open Records Act in responding to John Ellenbogen's December 16, 1999 open records request, which made the following requests:
1. I request an opportunity to inspect the original documentation for all purchases and/or rent/ lease of photocopying equipment for use by Kenton County Fiscal Court, which was initiated during the years from 1993/1994 to the current year.
2. I request an opportunity to inspect the original receipt documentation and invoices and payment records for all photocopying equipment Kenton County Fiscal Court obtained for its own use, which was actually paid during the fiscal years from 1993/1994 to the current fiscal year.
3. I request an opportunity to inspect the documentation for all purchases, receipt documentation and invoices and payment records for supplies and accessories (like cartridges and toner and photocopy paper) used with photocopying equipment by the Kenton County Fiscal Court during the fiscal years from 1993/1994 to the current fiscal year.
4. I request an opportunity to inspect the original documentation for all purchases and/or rent/ lease of computer equipment including processing equipment, storage equipment, monitors, printers, scanners, modems, routers, computer-related wiring, data and other back-up equipment, power supplies, CD-readers and CD-writers, etc. for use by Kenton County Fiscal Court, which was initiated during the fiscal years from 1993/1994 to the current fiscal year.
5. I request an opportunity to inspect the original receipt documentation and invoices and payment records for all computer equipment as described in paragraph 4. above, which Kenton County Fiscal Court obtained for its own use, which was actually paid during the fiscal years from 1993/1994 to the current fiscal year.
6. I request an opportunity to inspect the documentation for all purchases, receipt documentation and invoices and payment records for supplies, accessories, planning and educational materials and services, programs and programming services (like blank CD's, Tapes, Tape Cartridges, 5.25" and 3.5" Floppy Disks, batteries, replacement components, books, lectures, courses, reference materials, consulting services, planning services, instruction services, operating systems software, applications software and other software programs, programming services, etc.) for the benefit of and use with computer equipment by the Kenton County Fiscal Court during the fiscal years from 1993/1994 to the current fiscal year.
7. I request an opportunity to inspect the documentation for all acquisitions and/or rent/ lease of communication rights and equipment and software and services in connection with communications via computer (like Domain Names, Internet Service Providers, Hosting of Web Sites, consulting and planning services, communications software and software programming services, etc.) for the benefit of and use by the Kenton County Fiscal Court during the fiscal years from 1993/1994 to the current fiscal year.
1. I request an opportunity to inspect the Rules and Regulations the Kenton County Fiscal Court has adopted pursuant to KRS 61.876 pertaining to Public Records. Also, please let me know the fees Kenton County Fiscal Court prescribes pursuant to KRS 61.874(3) for 8.5" x 11" photocopies, and other sizes of photocopies, and the fees for 3.5" and 5.25" Floppy Disks, and for standard blank CD's.
2. Please let me know to [Mr. Ellenbogen's FAX No.] the office hours and room number, when and where I may come to inspect the original records, and the name and telephone number of the person I should ask for.
On the same day, December 16, 1999, Brandon N. Voelker, Assistant Kenton County Attorney, responded to Mr. Ellenbogen's request. In response to numbered requests 1 - 8, Mr. Voelker stated:
No request made. See previous open record response dated December 10, 1999.
In response to numbered request 9, Mr. Voelker stated:
Answer contained in open records response dated December 10, 1999.
To facilitate our review of this appeal, we requested Mr. Voelker to provide this office with a copy of the Kenton County Fiscal Court's December 10, 1999 open records response so the bases of the agency's response to Mr. Ellenbogen's December 16, 1999 request could be determined.
In response to our request, Mr. Voelker provided this office with a response, stating that he had inadvertently referenced December 10, 1999, instead of December 8, 1999, in his response to Mr. Ellenbogen's December 16,
1999 request. A copy of the December 8, 1999 response was enclosed with Mr. Voelker's response.
In relevant part, Mr. Voelker's December 8, 1999 response advised Mr. Ellenbogen that the Kenton County Judge/Executive had designated him as the Official Records Custodian of the Kenton County Fiscal Court and that any future requests should be directed to him. Mr. Voelker further advised that any requests that were not sent to him would be considered void.
In his response to the issues raised in the appeal, Mr. Voelker indicated that Mr. Ellenbogen's December 16, 1999 open records request had been sent to Richard L. Murgatroyd, Kenton County Judge/Executive, instead of to him as directed by his December 8, 1999 letter. On this basis, Mr. Voelker determined that Mr. Ellenbogen's request was invalid and denied his request.
We are asked to determine whether the response of the Kenton County Fiscal Court was a violation of the Open Records Act. For the reasons that follow, we conclude that the actions of the Fiscal Court, with the possible exception of the posting of its rules and regulations pertaining to open records requests, were in substantial compliance with the Act.
KRS 61.872(4) directs:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
As noted above, Mr. Ellenbogen, by letter dated December 8, 1999, was notified that Mr. Voelker had been designated as the Official Records Custodian of the Kenton County Fiscal Court and that any future requests should be directed to him. The letter specifically provided the name and address of the agency's official custodian. Despite this notification, Mr. Ellenbogen addressed his December 16, 1999 request to the Kenton County Judge/Executive.
KRS 61.870(5) defines the term "official custodian" as "the chief administrative officer or any other officer or employee of a public agency who is
responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." KRS 61.872(2) states that as a precondition of processing an open records request, "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." KRS 61.876(1)(b) requires the public agency to post rules and regulations which conform to the Open Records Act and are aimed at providing full access to public records, and which identify the official custodian of the agency's records. Finally, KRS 61.880(1) provides that the agency's response to an open records request "shall be issued by the official custodian or under his authority, and it shall constitute final agency action." When read together, these provisions mandate the appointment of an official custodian of records whose function it is to process all open records requests that the agency receives.
As we noted in 93-ORD-134, "we see nothing wrong with the . . . policy of processing open records requests through . . . [one office]. In our view, this policy insures uniformity and adherence to the law." 93-ORD-134, p. 10, 11. Assuming that the Kenton County Fiscal Court applies this policy in a consistent manner, we believe that an agency may properly require all records requests to be routed through its official custodian to ensure the timely and orderly processing of open records requests.
Under ordinary circumstances, if an open records request is inadvertently submitted to other than the official custodian, whether through ignorance or misdirection, agency employees are expected to promptly reroute the request to the official custodian so that a timely consideration of the request is insured. 98-OMD-64. However, in the instant case, Mr. Ellenbogen was notified of the name and address of the official custodian and the Kenton County Fiscal Court's policy that all open records requests should be sent to Mr. Voelker. Mr. Ellenbogen can claim neither ignorance nor misdirection. Despite the fact that he was given personal notification of the identity of the agency's official custodian, Mr. Ellenbogen submitted his request to the Kenton County Judge/Executive. This failure to follow the policies and procedures established by the agency suggests a lack of good faith cooperation on Mr. Ellenbogen's part.
The Open Records Act contemplates a spirit of cooperation between the parties. In 93-ORD-15, this office stated:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.
The procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of a records request. 94-ORD-26. Having been put on notice that all future requests for records of the Kenton County Fiscal Court should be directed to Mr. Voelker, its designated official custodian, Mr. Ellenbogen should not frustrate the process put in place by the agency to accommodate his open records requests. 00-ORD-8.
Mr. Ellenbogen must submit his requests in accordance with the policies and procedures established by the Kenton County Fiscal Court, including addressing the request to Mr. Voelker, the agency's official custodian. The Kenton County Fiscal Court must in turn promptly respond to Mr. Ellenbogen's request in writing and make the requested records available for inspection in a timely fashion. If the request is denied, in whole or in part, the response should 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. KRS 61.880(1).
Mr. Ellenbogen further argues that the Kenton County Fiscal Court has not complied with the requirements of KRS 61.876 by adopting and displaying its rules and regulations applicable to open records requests in a prominent location accessible to the public and denied his request to inspect those rules and regulations.
In OAG 78-340, this office held that KRS 61.876 requires that each public agency shall adopt rules and regulations pertaining to open records requests and failure to do so constitutes a technical violation of the Open Records Act. KRS 61.876(2) requires each agency to display a copy of its rules and regulations in a prominent location accessible to the public. These rules and regulations are also required to set forth the name and address of the official custodian of the agency's records.
It is unclear from the record before us whether the rules and regulations were on display in a prominent location at the time of Mr. Ellenbogen's request. The Kenton County Fiscal Court has advised this office that a copy of the current "Kenton County Public Records Access Policy December 1999" is now posted in an area accessible to the public in the hallway of the Fiscal Court Administrative Offices, Room 205-207, Second Floor of the Kenton County Building at 303 Court Street, Covington, Kentucky 41011.
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.