Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the actions of the City of Indian Hills in response to the open records request of Bill Mabry for copies of the following records:
1. Any and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line existing prior to January 1, 1999. This request specifically includes, but is not limited to, easement agreements, surveys and any and all documents related to the granting of easements.
2. All reports, documents, summaries, descriptions or accounts which identifies those property owners receiving easements from the City of Indian Hills for the purpose of connecting to any MSD sewer line existing prior to January 1, 1999.
3. All reports, documents, summaries, descriptions, accounts, invoices, bills, requisitions, etc., regarding the activities of the City of Indian Hills legal counsel as related to the granting of easements from the City of Indian Hills for the purpose of connecting to any MSD sewer line existing prior to January 1, 1999.
4. All reports, documents, summaries, descriptions or accounts related to the special legal fee assessed by the City of Indian Hills to those property owners receiving easements from the City of Indian Hills for the purpose of connecting to any MSD sewer line existing prior to January 1, 1999. This request includes, but is not limited to, any and all records which detail payment status by property.
Under the terms of KRS § 61.872(3)(b), I elect to have copies of the documents responsive to these requests mailed to me at the above address. Recent court rulings have held that 10 cents is a reasonable charge for copies, which we will be pleased to pay, in addition to the cost of mailing. In the course of other requests, we have been able to forward payment after receipt of the documents. If you require payment in advance, please give me a call at the above number.
By letter dated December 27, 1999, Timothy J. Eifler, counsel for the City of Indian Hills, responding to Mr. Mabry's request, advised him that the requested records would be made available for his inspection at a mutually agreeable time at the City's offices. He further advised that copies of records, not otherwise exempt, could be made at a copying charge of ten cents per page.
The City denied Mr. Mabry's request to have copies of documents responsive to his request mailed to him at his address in Lexington, Kentucky. In support of this denial, Mr. Eifler stated:
This denial is based upon the exception to the open records law provided in KRS 61.872(6) because attempting to produce the public records in the form requested would place an unreasonable burden upon the City. Your requests do not specifically identify documents and would require the City to copy all documents potentially related to your requests in order to comply. The City has no paid staff. The City would have to hire a staff person specifically to produce copies of these records.
. . .
In order to assist you and to avoid having to deny your requests for failing to identify documents with specificity, a member of the City Council will be available to meet with you at a mutually agreeable time to make available all documents potentially responsive to your requests. By inspection, you can identify which documents, if any, are responsive to your requests.
By letter dated February 7, 2000, Mr. Mabry provided this office, and copied Mr. Eifler, with a response to the City's assertion that the records request was too vague and to search its records to find records potentially related to his request would impose an unreasonable burden upon the City. In his response, Mr. Mabry provided the following additional information:
To assist you in your determination of the above referenced matter, I would offer as additional information that the actual number of properties that would have received easements to attach to an MSD sewer line prior to 1999 is extremely small (approximately 12). Prior to 1999, the Louisville/Jefferson County Metropolitan Sewer District (MSD) did not serve the City of Indian Hills. It was not until early 1999 that MSD began installation of a sewer system for the entire City of Indian Hills. However, in the early 1990's, a sewer line was constructed through Indian Hills for the sole purpose of providing sewer services to cities adjacent to Indian Hills. This project, known as the Muddy Fork Interceptor, passed through Indian Hills and afforded a small number of City properties located within 1000 feet of the Muddy Fork Interceptor to connect directly to this sewer line. For further clarification, I have enclosed a partial map of Indian Hills, which highlights the basic route of the Muddy Fork Interceptor. In addition, easements would only be required by those properties which were within the 1000 foot limit and would have to cross the City of Indian Hills park area (delineated by the lined areas on the attached map)--a very small number.
Indian Hills is well aware of those properties receiving easements and should be able to easily locate and provide the requested records. In fact, these properties were assessed a special "outside counsel" fee in order to reimburse the City for the use of the City Attorney to review and negotiate the easement agreements of those properties eligible to connect. This fee was based on the total fee divided by the number of properties connecting to the Muddy Fork Interceptor. Since it is obvious these records exist and were utilized to determine a special fee, the City's assertion that these records are burdensome and vague is totally and completely without merit. On the contrary, the original and revised requests are extremely specific.
Mr. Mabry challenged the City's argument that copying the requested records would be a hardship because the City had no paid staff. He stated that on December 20, 1999, the City had passed an ordinance outlining the duties of the City Clerk, designating the position as the "official custodian, " and the salary range.
In addition, Mr. Mabry amended and clarified his original request by limiting the relevant time period of the requested records which originally read, "existing prior to January 1, 1999," to read: "from January 1, 1990 to January 1, 1999 ."
On March 7, 2000, Mr. Eifler provided this office with a response to Mr. Mabry's letter of February 7, 2000. He acknowledged that the City had passed an ordinance authorizing the hiring of a City Clerk, but had not yet been able to fill the position and, thus, had no clerk to make copies of the "ambiguously defined records" which Mr. Mabry had requested. Addressing the issue of the burdensome aspect of Mr. Mabry's request, Mr. Eifler argued:
The General Assembly has clearly provided that hardship is a factor in determining the City's obligation to make copies of records and provide those copies to Mr. Mabry. An official custodian may refuse to permit inspection of public records, or mail copies thereof , if the application places an unreasonable burden in producing public records. KRS 61.872(6). To comply with Mr. Mabry's request, the City must copy any and all documents which could reasonably be construed to be encompassed within his broad requests. Because the City has no clerk, these requests place an unreasonable burden upon the City.
Mr. Eifler further argued that an applicant must describe the requested records with enough specificity to allow the public agency to identify and locate the records. He reiterated his earlier response that despite this lack of specificity, the City had not denied Mr. Mabry's request outright and was willing to allow him to review the City's records to locate the documents he was seeking.
We are asked to determine whether the City violated the Open Records Act in responding to Mr. Mabry's request. The issue presented here is whether Mr. Mabry has sufficiently described the records he seeks to require the City to mail him copies of the records.
In 97-ORD 16, this office considered a public agency's duties relative to providing copies of public records upon request. At page 2 and 3 of that decision, we observed:
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
The Open Records Act thus 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 whose residence or principal place of business is outside 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.
Mr. Mabry's principle place of business is in Fayette County, and the records are located in Jefferson County, thus he satisfies the "outside the county" requirement of KRS 61.872(3)(b). A second requirement of the statute places a burden on the requester who wishes to access public records through the mail to "precisely describe" the records he seeks.
An "outside the county" requester that elects to access public records through the mail rather than to make an on-site inspection bears a greater burden in describing the records he is asking the agency to locate, copy, and mail to him. Although Mr. Mabry described the general nature of the records he was seeking, i. e., records relating to granting of easements for connecting to MSD sewer lines during the period of January 1, 1990 to January 1, 1999 and the relevant activities of the City's legal counsel and fees associated with the granting of the easements, he failed to describe the precise records he was seeking.
A request for copies of "any and all records" that may relate to these easements and "all reports, documents, summaries, descriptions, accounts, invoices, bills, requisitions, etc., regarding the activities of the City of Indian Hills legal counsel as related to the granting of easements" and phrases such as "this request includes, but is not limited to, any and all records . . ." is more in the nature of a broad discovery request rather than an open records request for precisely described records. The City argues such a request would require it to search for and copy any and all documents that could potentially be construed to be encompassed within Mr. Mabry's broad request.
In 97-ORD-46, this office observed the following relative to the burden placed upon seeking copies of records by mail:
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. In construing KRS 61.872(2), this office has observed:
. . .
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.
Mr. Mabry provided information that the number of properties that received easements was small and limited the timeframe of his records request. However, he did not identify the records that he wanted copied in definite, specific, and unequivocal terms. Unless he can describe the records he seeks with precision, the City is not obligated to search through its records for "any and all" records that may relate to his request.
Under these circumstances, the City can require Mr. Mabry to come to its office to conduct his own search through the files for the records he seeks. As noted above, the City has agreed to permit Mr. Mabry to review the City's records at a mutually agreeable time to obtain the records he requests. Accordingly, we conclude that the response of the City did not constitute a violation of the Open Records Act.
Because the foregoing is dispositive of the instant appeal, we need not address the additional basis relied upon by the City that production copies of the requested records would constitute an unreasonable burden upon the agency, under KRS 61.872(6).
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.