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, or otherwise subverted the intent of, provisions of the Open Records Law in its disposition of John Ellenbogen's January 28, 2000, request for records. For the reasons that follow, and based on the authorities cited, we find that the fiscal court neither violated nor subverted the intent of the law in responding to Mr. Ellenbogen's request.
Mr. Ellenbogen addressed his January 28 eight part open records request to:
The Chief Administrative Officer
of Kenton County Fiscal Court
c/o Mr. Richard C. Murgatroyd
Kentucky County Judge-Executive
303 Court Street
Covington KY 41011
On January 31, 2000, Judge Murgatroyd responded to Mr. Ellenbogen's request, advising him to send that request to Brandon N. Voelker, 303 Court Street, Room 205, Covington, Kentucky 41011. Judge Murgatroyd also furnished Mr. Ellenbogen with Mr. Voelker's fax number and telephone number. In closing, Judge Murgatroyd again notified Mr. Ellenbogen that "pursuant to Resolution 00-01 of the Kenton Fiscal Court, Mr. Voelker is the Records Custodian for the Kenton County Fiscal Court[, and] all future requests shall be directed to him." Judge Murgatroyd reminded Mr. Ellenbogen that Mr. Voelker had informed him "of his position in his December 8, 1999, letter." This appeal followed.
In his letter of appeal, Mr. Ellenbogen questions Judge Murgatroyd's response, arguing that his request "was addressed to the chief administrative officer of the public agency by its full name, not to a person," and that indeed "the name of the person given . . . has no bearing on the validity of an Open Records Request." It is his position that Judge Murgatroyd "should have handed [Mr. Ellenbogen's] eight Open Records Requests of 28 January 2000 to whoever he prefers to give them to in his own 'Room 205 - numbered office' for lawful processing . . . ." On this basis, Mr. Ellenbogen asks that the Attorney General "issue a decision in this case consistent with [his] views . . . [and] direct Kenton County Fiscal Court to promptly arrange for me to inspect the non-exempt public records . . . ."
In a supplemental response directed to this office, Brandon N. Voelker, official records custodian for the Kenton County Fiscal Court, defended Judge Murgatroyd's actions:
On January 28, 2000, Mr. Ellenbogen sent an Open Records Request to Kentucky County Judge-Executive Richard L. Murgatroyd. Judge Murgatroyd responded to Mr. Ellenbogen's request by directing him to contact the Kenton County Fiscal Court's Official Records Custodian. This person happens to be me.
KRS 61.872(4) states that "if a 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. " Judge Murgatroyd did this. Furthermore, 00-ORD-8, a previous appeal by Mr. Ellenbogen, states that "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."
Given the restrictive three-day statutory deadline for agency response to an open records request, Mr. Voelker emphasized, "it is critical that they be directed to my attention." He explained:
Correspondence directed to my attention goes in my mailbox. I do not check Judge Murgatroyd's mailbox. The only way I receive an Open Records Request is when they are [sic] sent to my attention.
Acknowledging Mr. Ellenbogen's right to utilize the provisions of the Open Records Act, Mr. Voelker nevertheless maintained that he "does not have an absolute right to harass employees and members of the Fiscal Court." Because "Mr. Ellenbogen's actions are disrupting the essential functions of the Fiscal Court," Mr. Voelker asked that this office consider KRS 61.872(6) in rendering our decision.
In correspondence directed to this office following Mr. Ellenbogen's decision to resurrect his previously withdrawn appeal, Mr. Voelker relied on language appearing in 00-ORD-73, an open records decision that was also addressed to Mr. Ellenbogen. In particular, he relied on the Attorney General's finding that Mr. Ellenbogen "'can claim neither ignorance nor misdirection' for his failure to follow the Open Records Policy of the Kenton County Fiscal Court," and that his "failure to follow the policies and procedures established by the agency suggests a lack of good faith cooperation on Mr. Ellenbogen's part." He again asked that the Attorney General determine that Mr. Ellenbogen's "present and future requests and/or appeals violate KRS 61.872(6)," concluding that his refusal to abide by 00-ORD-73 "present clear and convincing evidence of the true nature of his requests and/or appeals."
While we find no error in the Kenton County Fiscal Court's disposition of Mr. Ellenbogen's January 28 request, we are not prepared to affirm the Fiscal Court invocation of KRS 61.872(6) as a basis for denying this and future requests. Given the apparent volume of Mr. Ellenbogen's requests and the tenor of those requests, it is clear that the Kenton County Fiscal Court might at some point build a successful case under KRS 61.872(6). However, in the appeal before us the Fiscal Court has not presented clear and convincing evidence of an unreasonable burden or of an intent to disrupt its essential functions.
In 00-ORD-73, this office addressed the same issue which Mr. Ellenbogen raises in this appeal. We believe that decision is controlling, in particular the discussion at pages four through seven, and incorporate it by reference. Regardless of whether Mr. Ellenbogen's refusal to properly address his requests affects the validity of those requests, we suggest that he consider how his actions have frustrated his access to the records he seeks. By refusing to address his request to the formally appointed and previously identified custodian of records, Mr. Voelker, Mr. Ellenbogen has impeded his own right of access. In the appeal before us, Judge Murgatroyd discharged his KRS 61.872(4) duties by again furnishing Mr. Ellenbogen with the name and location of the official custodian of the Kenton County Fiscal Court's public records. Had Mr. Ellenbogen addressed his request to Mr. Voelker, he might now be in possession of the records identified in that request, rather than litigating an arcane procedural issue.
Because we do not reach the substantive issue of records access in this appeal, we cannot approve or disapprove the fiscal court's invocation of KRS 61.872(6). While we agree that Mr. Ellenbogen's refusal to observe established open records procedures is indicative of a lack of good faith, the record before us does not contain sufficient evidence to support Mr. Voelker's claim that his requests are intended to disrupt the fiscal court's essential functions. We refer the parties to 00-ORD-72, a copy of which is enclosed herewith and incorporated by reference. Here, as in 00-ORD-72, we note that although the fiscal court has not yet done so, we do not mean to suggest that it could not successfully build a case that Mr. Ellenbogen's requests have became intentionally disruptive. As we observed in the cited decision:
Although there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6). It is for the public agency to build the case.
00-ORD-72, p. 7, citing 96-ORD-193, p. 5. In the absence of sufficient proof supporting its claim under KRS 61.872(6), we cannot affirm the Kenton County Fiscal Court's reliance on this provision.
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.