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 Jefferson County Judge/Executive Rebecca Jackson violated the Open Records Act in her disposition of Nancy Perry's December 10, 1999, request for a broad range of records "dealing with wildlife related issue[s]," and in particular, problem bird roosts. For the reasons that follow, we conclude that the county judge fully discharged her statutory duties in responding to Ms. Perry's request.
On behalf of the Humane Society of the United States, Ms. Perry requested access to eight categories of documents ostensibly in the county judge's custody and control. Ms. Perry expanded the scope of her request to "include all the agencies under the purview of the Jefferson County Fiscal Court, including the Louisville/Jefferson County Health Department, Louisville/Jefferson County Parks Department and any other agency affiliated with Jefferson County government. . . ." Although the county judge agreed to make responsive records available to her for inspection, Judge Jackson characterized her requests as over-broad and burdensome, and refused to mail her copies of those records.
Ms. Perry's subsequent open records appeal was premised on the county judge's refusal to mail her copies. Relying on KRS 61.872(3)(b), she complained that because her residence and principal place of business are located outside of the county in which the public records are located, she is entitled to receive copies of the records through the mail. It is the opinion of this office that because Ms. Perry did not "precisely describe" the records which she wished to access by mail, and those records were not "readily available within the public agency, " the Office of the Jefferson County Judge/Executive discharged its duties under the Open Records Act by notifying her where records that were responsive to her requests could be located, and agreeing to make those records available for inspection.
A summary of Ms. Perry's separately numbered requests, and the county judge's responses, 1 follows:
Request 1: All reports, documents, summaries, descriptions, accounts, workplans, memos, electronic and/or telephonic communications or any other communication between Jefferson County government and the USDA Wildlife Services (WS) from January 1, 1996 to present. This request includes, but is not limited to, any and all Environmental Assessments and/or Environmental Impact Statements prepared by WS on behalf of Jefferson County government for dealing with any wildlife-related issue.
County Judge's response:
1. This request is over-broad and burdensome in that it requests all written and electronic communication between Jefferson County government and USDA Wildlife Services from January 1, 1996 to the present. Additionally, the request is vague in that it requests any information relating to a "wildlife-related issue". The term "wildlife" is not defined and makes a record search unduly burdensome. Notwithstanding these objections, Jefferson County responds as follows as to location of documents meeting this request:
Request 2: All reports, documents, summaries, descriptions, accounts, memos, electronic and/or telephonic communications from Jefferson County residents, neighborhoods, corporations or other persons or entities to any Jefferson County agency or representative--whether administrative or elected--regarding issues and/or problems concerning conflicts with birds or problem bird roosts in Jefferson County from January 1, 1996 to present.
County Judge's response:
2. This request is over-broad and burdensome in that it requests all written and electronic communication from any "Jefferson County residents, neighborhoods, corporations or other person's or entities" to any Jefferson County agency from January 1, 1996 to the present. Notwithstanding this objection, Jefferson County responds as follows as to location of documents meeting this request.
Request 3: All reports, documents, summaries, descriptions, accounts, memos, electronic and/or telephonic communications between WS and Jefferson County government regarding problembird roosts from January 1, 1996 to present. This request specifically includes any and all documentation on problem bird roosts, whether on public or private properties, in Jefferson County.
County Judge's response:
3. This request is over-broad and burdensome in that it requests all written and electronic communication between Jefferson County government and the USDA Wildlife Service from January 1, 1996 to the present. Notwithstanding this objection, the located documents may be examined by contacting the agencies listed in response to Request 1 and 2 above.
Request 4: All reports, documents, summaries, descriptions, accounts, memos, electronic and or telephonic communications between Jefferson County government and any other internal or external governmental agency, corporation, contractor, business, individual, etc., regarding problem bird roosts from January 1, 1996 to present.
County Judge's response:
4. This request is over-broad and burdensome in that it requests all written and electronic communication between Jefferson County government and "any other internal or external government agency, corporation, contractor, business, individual, etc." from January 1, 1996 to the present. Notwithstanding this objection, the located documents may be examined by contacting the agencies listed in response to Request 1 and 2 above. Additionally, the City of Louisville should be contracted in regards to any documents in its possession relating to "problem bird roosts" .
Request 5: All reports, documents, summaries, descriptions, accounts, memos, electronic and/or telephonic communications, workplans, staffing plans, etc., between WS and Jefferson County government regarding the proposed plan for problem bird roosts and for bird management and control at the Jefferson County Courthouse from January 1, 1996 to present. This request specifically includes, but is not limited to, all documentation regarding bird control programs to be or being implemented including application of any avicides, monitoring, clean-up, timetables, bait sites, etc.
5. This request is over-broad and burdensome in that it requests all written and electronic communication between Jefferson County government and the USDA Wildlife Service from January 1, 1996 to the present. Notwithstanding this objection, the located documents may be examined by contacting the agencies listed in response to Request 1 and 2 above.
Request 6: Invoices, bills requisitions, purchase orders, warrants or other documentation for services, property, supplies, etc., received from WS by Jefferson County government for any purpose from January 1, 1996 to present.
County Judge's response:
6. This request is over-broad and burdensome in that it requests all written and electronic communication between Jefferson County government and the USDA Wildlife Service from January 1, 1996 to the present. Notwithstanding this objection, Jefferson County has provided copies of invoices and related financial information from 1998. Any other relevant documents may be examined by contacting the agencies listed in response to Request 1 and 2 above.
Request 7: Invoices, bills requisitions, purchase orders, warrants or other documentation for services, property, supplies, etc., received by Jefferson County government from any outside contractor, business, individual, etc., for the purpose of problem bird roosts and for bird management and control from January 1, 1996 to present.
7. This request is over-broad and burdensome in that it requests all written and electronic communication received by Jefferson County government from "any other contractor, business, individual, etc." for the "purpose of problem bird roost and for bird management and control" from January 1, 1996 to the present. Notwithstanding this objection, the located documents may be examined by contacting the agencies listed in response to Request 1 and 2 above.
Request 8: All reports, documents, summaries, descriptions, accounts, memos, electronic and/or telephonic communications between any person or agency of Jefferson County and any person or agency of the City of Louisville specifically related to problem bird roosts occurring within the City of Louisville or Jefferson County from January 1, 1996 to present.
County Judge's response:
8. This request is over-broad and burdensome in that it requests all written and electronic communication between any person or agency of Jefferson County and any or agency of the City of Louisville" from January 1, 1996 to the present. Notwithstanding this objection, the located documents may be examined by contacting the agencies listed in response to Request 1, 2 and 4 above.
Attached to the County Judge/Executive's response were copies of seven documents referenced in her disposition of requests one and six.
In defense of the Jefferson County Judge/Executive's position, Government Affairs Director Kathryn R. Matheny directed a supplemental response to this office. Ms. Matheny asserted:
under the terms of KRS 61.872(3)(b), a public agency is required to mail out copies of documents to out of county persons if the person "precisely describes the public records, which are readily available within the public agency" . A review of the request of HSUS shows it is broadly worded in that six of the eight request begin with a request for all "reports, documents, summaries, descriptions, accounts, workplans, memos, electronic and/or telephonic communications or any other communications . . ." between a variety of entities or individuals. Specific documents are not "precisely" listed or described. Further, the request made by HSUS is not limited to documents pertaining to a certain event or subject matter and its related environmental impact statements, involvement with the USDA Wildlife Service, etc. which would allow the agency to determine a list of documents responsive to the requests. In the absence of a "precisely described" list of documents to a specific record custodian, KRS 61.872(3)(b) does not require Jefferson County Government to find, assimilate and copy all of these documents.
Ms. Matheny also objected that many of the requested records are not within the custody and control of the Jefferson County Judge/Executive. Relying on KRS 61.872(4), she maintained that the Office of the Jefferson County Judge/Executive fully discharged its duties by notifying Ms. Perry which county agencies had custody of those records, identifying the custodian of records for each of those agencies, and agreeing to make them available for inspection.
Ms. Matheny's third objection centered on the nonspecificity of Ms. Perry's request. She explained:
six of the eight requests ask for all "reports, documents, summaries, descriptions, accounts, workplans, memos, electronic and/ortelephonic communications or any other communications .." between certain entities or individuals on a variety of subject matters. The first request asked for all of these types of documents between Jefferson County Government and the USDA Wildlife service on a "wildlife-related issue". The term "wildlife" is not defined and given the fact that request is not made to the Judge/Executive office alone but to all Jefferson County agencies and affiliated agencies it is overly broad and burdensome. The request can not be honored with out searching all files at all agencies. As specifically objected to in the December 14, 1999 response, this is specifically burdensome as to Parks Department that may have miscellaneous information on wildlife scattered throughout its files on the various parks and Nature Preserves in the County. The Jefferson County Health Department has a similar problem identifying any records it may have pertaining to "wildlife" . The other seven requests are overbroad and burdensome in that they request copies of all sorts of communications between all different groups of people which are not tied to a specific issue or a narrow time frame.
In closing, Ms. Matheny commented on Ms. Perry's "out of county" status, and her claimed entitlement to receipt of copies by mail. She noted that a nearly identical request was submitted by the local Fund for Animals, Inc., on November 30, and a similar response issued by the county judge on December 3, 1999. In that December 3 response, Judge Jackson agreed to permit inspection, but refused to send copies, of the eight categories of records requested by the Fund for Animals. Ms. Matheny questions whether the Fund for Animals might be using the national Humane Society, headquartered in Washington, D.C., in an attempt to make an end run around the on-site inspection requirement for requesters residing or working in the county where the records are located, and to avoid expending its own energy in sorting through the enormous volume of materials in order to locate responsive records. She reaffirmed the commitment of the Jefferson County Judge/Executive's office to honor any properly framed open records requests for precisely described public records in the custody and control of her office. We find these arguments to be well-grounded in the law.
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
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.
In construing these provisions, the Attorney General has observed:
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. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency . See, e.g., 95-ORD-52; 96-ORD-186. . . .
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail.
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. 2, 3 (emphasis added).
Ms. Perry works, and apparently resides, in Washington, D.C. The disputed records are located in Jefferson County, Kentucky. Ms. Perry satisfies the first requirement of KRS 61.872(3)(b). The narrow issue, therefore, is whether she "precisely described" the records, and whether those records "are readily available within the public agency. " In our view, she did not precisely describe the records and they are not readily available. Contrary to her apparent belief, out-of-county residence does not automatically qualify her to receive copies of records through the mail. The records identified in Ms. Perry's request were not described with reasonable particularity, much less "in definite, specific, and unequivocal terms." Indeed, hers were the "open ended any-and-all-records-that-relate-type of requests" that were specifically criticized in 96-ORD-101 and 99-ORD-14. In the latter decision, this office recognized that:
a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
99-ORD-14, p. 6. Further, we recognized that:
although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, public employees "are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4.
99-ORD-14, p. 5; see also 99-ORD-63.
Because the records identified in Ms. Perry's request were not precisely described, the records cannot be characterized as records that are readily available within the Office of the Jefferson County Judge/Executive. Accordingly, they do not satisfy the third requirement of KRS 61.872(3)(b). In construing this requirement, the Attorney General has stated:
The third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
97-ORD-46, p. 5. The Office of the Jefferson County Judge/Executive extended an offer to Ms. Perry to inspect the records identified in her request. Based on the authorities cited, we find that in so doing the County Judge/Executive fully discharged her duties under the Open Records Act. We affirm the County Judge/Executive's disposition of Ms. Perry's records request.
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.
Footnotes
Footnotes
1 We quote these requests and responses verbatim in order to demonstrate the broad scope of Ms. Perry's request and the voluminous nature of the records implicated by that request.