00-ORD-235
December 20, 2000
In re: Jason P. Thomas/City of Jamestown
Open Records Decision
The question presented in this appeal is whether the City of Jamestown violated the Open Records Act in the disposition of Jason P. Thomas’ July 3, 2000, request to inspect or copy records relating to the Creelsboro/Rockhouse Water Project. For the reasons that follow, we find that although the city properly, albeit belated, extended an invitation to Mr. Thomas to inspect “what documents are available regarding this project, such as maps, easements, water usage agreements,” and advised him that “the documents requested such as written guidelines, written decisions to serve certain areas, etc., do not exist,“ its disposition of his request was procedurally deficient.
On behalf of his clients, Arlis and Marianne Guffey, Mr. Thomas submitted a request to Terry Lawless, Supervisor of the City of Jamestown’s Public Works Department, in which he asks to inspect, or receive a copy of, records identified as follows:
1. Written guidelines the City of Jamestown used to determine what areas received water under the Creelsboro/Rockhouse Water Project.
2. Documents relating to the City’s decision to serve particular areas under the Creelsboro/Rockhouse Water Project and the decision not to serve the Temple Hill Road area in connection with the Creelsboro/Rockhouse Water Project.
3. Documents relating to the scope (either originally or as amended) of the Creelsboro/Rockhouse Water Project.
Mr. Thomas explained that the Guffeys' request that a waterline be run to their property was denied, and they wished to review the records to insure that “the process to determine what areas received water was a fair one.”
In an undated response, Mr. Lawless furnished Mr. Thomas with a copy of the user agreement signed by Mr. Guffey, “highlight[ing] portions of the agreement that should be self-explanatory as to [Mr. Thomas’] questions.” Mr. Lawless also furnished Mr. Thomas with the name and telephone number of Jamestown City Attorney, Jeffrey H. Hoover. He did not indicate whether any other responsive records existed.
Dissatisfied with this response, Mr. Thomas forwarded his open records request to Mr. Hoover on July 12. Having received no response, he resubmitted the request on July 27. On July 31, Mr. Hoover responded, advising Mr. Thomas:
I did receive a facsimile from you requesting certain documents but after talking with Mr. Terry Lawless . . ., it was my understanding those documents had been supplied. If you did not receive the information you were requesting, please state specifically what information you are requesting and I will personally meet with Mr. Lawless in an effort to comply.
In closing, Mr. Hoover reiterated that he did not respond to Mr. Thomas’ request because he understood that the documents had been disclosed, but that he would “promptly respond” to a request for “specific documents.” Subsequent efforts by Mr. Thomas to obtain the records identified in his request proved equally unsuccessful, prompting him to initiate this appeal. On appeal, Mr. Thomas maintains that the degree of specificity in records description that the City of Jamestown demands exceeds the statutory requirement of “reasonable particularity.”
In a letter directed to this office following commencement of Mr. Thomas’ appeal, Mr. Hoover elaborated on the city’s position. Noting that Public Works Supervisor Terry Lawless is not the city’s official custodian of records, he emphasized that Mr. Lawless nevertheless “respond[ed] to Mr. Thomas by providing those documents which were in the possession of the City of Jamestown regarding this project and Mr. Thomas’ clients.” Continuing, he observed:
I did not know any of the above until I received a letter from Mr. Thomas requesting the information and informing me of the documents he received from Mr. Lawless. I also spoke on the phone with Mr. Thomas. I then contacted Mr. Lawless, who informed me that he and the City Clerk, who is the official custodian of records, had sent Mr. Thomas what documents the City had regarding the Guffeys and the water project. I responded to Mr. Thomas with a letter that Mr. Lawless had provided documents in the City’s possession regarding the project and his clients, but he could provide me a list of specific documents he requested if he was not satisfied. When I received the letter setting forth the specific documents, Mr. Lawless informed me no such documents existed to his knowledge. I did not respond in writing to Mr. Thomas, but am certain I did discuss this with him again by telephone.
Mr. Hoover affirmed that the city “does not have written guidelines to determine what areas receive water in the project, nor does it have written documents regarding the city’s decision to serve certain areas in the project.” He indicated that the only documents relating to the scope of the project consist of engineering maps or drawings, “but certainly no documents setting forth the city’s decision to serve or not serve a certain area.” In closing, Mr. Hoover extended an invitation to Mr. Thomas “to visit City Hall and review what documents are available regarding this project, such as maps, easements, water user agreements,” but reiterated that “the documents requested such as written guidelines, written decisions to serve certain areas, etc. do not exist, according to city officials.” While we commend the city on its decision to permit Mr. Thomas unrestricted access to records relating to the Creelsboro/Rockhouse Water Project, we find that its initial disposition of his request was procedurally deficient, and that subsequent communications only partially mitigated this deficiency.
We begin by noting that the city failed to comply with KRS 61.880(1) in its original response to Mr. Thomas’ request. 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.
Although Mr. Lawless responded in an undated letter by furnishing Mr. Thomas with the Guffeys’ user agreement, he did not indicate whether records responsive to the request existed, or access was denied on the basis of one or more exceptions to public inspection. In defense of this response, Mr. Hoover notes that Mr. Lawless is not the city’s official custodian of records, but acknowledges that Mr. Lawless subsequently informed him that “he and the city clerk, who is the official custodian of records, had sent Mr. Thomas what documents the city had regarding the Guffeys and the water project.” Clearly, the city’s response was “issued by the official custodian or under his authority . . . .” KRS 61.880(1).
It is the opinion of this office that the City of Jamestown was obligated to advise Mr. Thomas in clear and direct terms that no records responsive to his request existed. A public agency’s response is insufficient under the Open Records Act if it fails to advise the requesting party whether the documents requested exist. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101; 96-ORD-164; 00-ORD-104. At page 3 of OAG 86-38, we construed the obligation of a public agency relative to a request to inspect documents, noting that “KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested.” We explained:
If the documents exist and inspection is denied, you should list each document which the [agency] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
Echoing this view, in OAG 90-26, at page 4, we categorically stated, “If a record of which inspection is sought does not exist, the agency should specifically so indicate.”
We are not persuaded that Mr. Thomas’ request was framed with insufficient precision to permit a categorical denial of the existence of the records. On this issue, the Attorney General has opined:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require “the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government.” 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island, 1978). Instead, the requester should submit “a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure.” Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6.
The degree of specificity required of a requester seeking to conduct an on-site inspection of public records, as opposed to a requester seeking to access public records by receipt of copies through the mail, is less exacting. Thus, in 95-ORD-108 the Attorney General 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. [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. In construing KRS 61.872(2), this office has observed:
[A]lthough the purpose and intent of the Open Records Act is to permit the “free and open examination of public records . . .,” this right of access is not absolute. [KRS 61.871]. As a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he wishes to review. OAG 89-81; OAG 91-58. . . .
If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.
95-ORD-108, p. 2, 3. The Attorney General then articulated a standard for determining if a requester has described the records he wishes to access by mail with “precis[ion].”
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.
97-ORD-46, p. 5.
We find that Mr. Thomas’ original open records request was framed with sufficient specificity to meet the standard for accessing public records by means of on-site inspection. The fact that Mr. Hoover was able to belatedly deny the existence of any responsive records provides clear proof that the request was sufficiently specific. We therefore conclude that the city’s demand for greater specificity was unsupportable. Having said this, we are equally obliged to note that the City of Jamestown has mitigated these deficiencies by extending an invitation to Mr. Thomas to review all available records relating to the Creelsboro/Rockhouse Water Project. The city has notified him that no records exist that are directly responsive to his request, but that he may exercise his right to inspect the existing records to extract the information he seeks. While we urge the City of Jamestown to closely examine KRS 61.880(1) to insure that future responses conform to the requirements of the Open Records Act, we believe that at this juncture the Act requires the city to do no more.
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.
Albert B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#732
Distributed to:
Jason P. Thomas
Stites & Harbison
400 West Market Street
Suite 1800 Louisville, KY 40202-3352
Terry Lawless
City of Jamestown
Director, Public Works Department
P.O. Box 587
Jamestown, KY 42629
Jeffrey H. Hoover
Jamestown City Attorney
P.O. Box 985
Jamestown, KY 42629