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 Greenup County Sheriff's Department violated the Open Records Act in its disposition of Daily Independent reporter Tom Lewis' July 26, 2000, request for "the number of cellular telephones owned, leased or rented by the . . . sheriff's office, a list of the people who carry or use those telephones, and copies of each bill received for those telephones since July 1, 1998, as well as a statement of the purpose(s) for the telephones. " Mr. Lewis' request went unanswered, prompting The Daily Independent to initiate this open records appeal.
On September 21, 2000, two days after The Daily Independent's appeal was received in this office, the Attorney General sent a copy of the letter of appeal submitted on its behalf, along with our notification of receipt of appeal, to Greenup County Sheriff Keith Martin Cooper and Greenup County Attorney Michael C. Wilson. Although that notification clearly stated that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no response to our notification.
The Greenup County Sheriff's Department's failure to respond to Mr. Lewis' July 26, 2000, request in a proper and timely fashion constitutes a violation of KRS 61.880(1). That statute provides:
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 Greenup County Sheriff's Department had not one, but two, opportunities to comply with KRS 61.880(1) by responding to Mr. Lewis' original request, and by responding to his request upon receipt of this office's notification of appeal. The Greenup County Sheriff's Department failed to do so in direct contravention of KRS 61.880(1).
In a companion appeal filed by the The Daily Independent , this office addressed the issue of access to public records documenting cellular telephone use in the Lawrence County Sheriff's Department, and concluded that, in general, such records were subject to public inspection. 00-ORD-198. At pages 2 through 4 of that decision, the Attorney General observed:
This office has long recognized that records documenting the use of public equipment at public expense are generally subject to public inspection. For example, in OAG 86-21 this office held that telephone records of the Legislative Research Commission were subject to public inspection. In subsequent opinions, this holding was extended to records reflecting the names and facsimile numbers of all facsimile transmissions made for personal, and not agency purposes on agency equipment (96-ORD-238), a tape recording documenting a personal conversation of some duration between a Division of Fire and Emergency Services employee and another employee on a telephone extension dedicated to public use for 911 emergency calls (98-ORD-31), telephone records for calls originating from a telephone line used in a legislative leadership office (98-ORD-92), copies of pornographic material copied from an internet site by a school district employee (99-ORD-112), and personal computer files on a university owned computer (00-ORD-97). Common to each of these decisions is the recognition that public equipment purchased from public funds, and used by public employees on public time, is intended for purposes related to public service. The public's interest in disclosure of records documenting use of public equipment therefore generally prevails over any of the exceptions to public inspection codified at KRS 61.878(1)(a) through (1).
With specific reference to telephone billing records, we observed:
OAG 86-21, p. 3, 4.
Nevertheless, we also recognized in OAG 86-21 that there would undoubtedly be occasions "when there is a legitimate need by a public agency to keep telephone numbers it has called confidential." Continuing, we noted that "when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone number should not be released." Id. at 4. Under this line of reasoning, it is incumbent on the agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In denying access to the excepted material, the agency must provide particularized justification for the partial nondisclosure.
We conclude that 00-ORD-198 is dispositive of the appeal before us, and that the Greenup County Sheriff's Department is therefore obligated to release cellular telephone billing records from July 1, 1998, to the present.
Consistent with the principles set forth in 00-ORD-198, the Department may redact individual entries appearing on these records if it can establish that they qualify for exclusion under KRS 61.878(1)(h). However, as we noted in 00-ORD-198, "the fact that individual entries on telephone records enjoy protection under the Open Records Act does not mean that the entire category of records may escape scrutiny for purposes of determining if public funds, time, and personnel are being properly used." 98-ORD-92, p. 13.
We note, in closing, that portions of Mr. Lewis' open records request were framed as requests for information as opposed to records. For example, in the first part of his request he asks for "the number of cellular telephones owned, leased or rented by the Greenup County Sheriff's office," rather than records documenting the number of cellular phones, such as inventory records. The Attorney General has recognized that the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request." OAG 85-45, p. 3 citing OAG 79-547 and OAG 83-333. Clearly, however, information (such as the number of cellular telephones) may be gleaned from public records, and it is the public agency's duty to make these records available for inspection or copying to facilitate this process.
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 proceedings.