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 and the Office of the Kenton County Attorney violated provisions of the Open Records Act in the disposition of a series of records requests submitted by Eric C. Deters over a period of time extending from January 15, 2001, through July 3, 2001. For the reasons that follow, we find that the agencies' responses were only partially consistent with Act, but further find that many of the deficiencies found in these responses were attributable to the unlimited scope and nonspecificity of Mr. Deters' requests.
On July 9, 2001, this office received a copy of a three page letter written by Mr. Deters, and addressed to Brandon Voelker, Assistant Kenton County Attorney and Records Custodian for the Kenton County Fiscal Court. In that letter, Mr. Deters' characterized the county's handling of his requests as "non-responsive," noting that as of July 3, the only records to which he had been afforded access were the budgets, litigation records relating to the parking garage, and the Newfarmer Report. Mr. Deters renewed a number of earlier requests, tendered a number of new requests, and asked that the Attorney General "issue an opinion to confirm these requests are subject to the Open Records Act . . . ." He attached copies of a January 15, 2001, open records request, a January 17, 2001, supplement to that request, and a June 4, 2001, request, advising Mr. Voelker that he had "been patient since January . . . [but would] not be patient any longer." Having reviewed this correspondence, we concluded that Mr. Deters' July 3 letter was meant to serve as an open records appeal, and gave notice of such to the fiscal court and county attorney pursuant to 40 KAR 1:030 Section 2.
On July 12, 2001, Mr. Voelker responded to Mr. Deters' appeal, defending his actions and the actions of the county, in the handling of Mr. Deters' requests. He provided this office with a nearly complete record of the correspondence exchanged by the parties since January 15 of this year. Only one document appears to be missing, and that is Mr. Deters' February 1, 2001, open records request. A summary of these requests and responses follows.
1/15/01 Operating on the assumption that Mr. Voelker acts as records custodian for both the Kenton County Fiscal Court and the Office of the Kenton County Attorney, Mr. Deters requests all public records including correspondence and pleadings filed by the fiscal court and/or the county attorney pertaining to:
1/17/01 Mr. Deters supplements his 1/15/01 request, seeking all correspondence and pleadings filed by the fiscal court and/or the county attorney pertaining to:
2/1/01 Although a copy of Mr. Deters 2/1/01 request was not submitted to this office, Mr. Voelker provides us with a copy of his 2/5/01 response the substance of which states:
6/4/01 Mr. Deters requests access to:
Approximately one month later, Mr. Deters submitted his final records request, referenced above, which also served to initiate this open records appeal. Mr. Voelker responded, on July 6, as follows:
1. "Renewed" request for John Elfers litigation files, including pleadings and correspondence files.
Mr. Voelker responds that the entire file is located at 28 W. Fifth Street, and Mr. Deters has already received it. He reiterates that no additional files are stored in the county attorney's office;
2. Request for "fee agreements with all attorneys hired by the fiscal court and/or county attorney from January, 1993, to the present," including Lawson Walker, Mark Arnzer, Sheryl Snyder, and all bills and disbursements from and to these attorneys. Mr. Deters adds, "These include attorneys not listed here who I have no idea of knowing about"
Mr. Voelker responds that fee agreements and bills and disbursements are not synonymous, but advises that he will ask the fiscal court to provide him with copies of all bills and disbursements to any law firm from 1993 to the present;
3. All fees paid to county attorney's office by fiscal court from January, 1993, to the present for "any legal work performed," including bills and fee agreements
Mr. Voelker responds that he furnished these records to Mr. Deters on June 7, and is furnishing them again;
4. "Renewed" request for all county attorney invoices, copies of Civil Summons, records on bad check prosecutions, and child support statistics
Mr. Voelker responds that the request for invoices is answered in his response to request number 3, and the remaining requests are answered in his June 7, 2001 letter to Mr. Deters, which contained copies of the requested records;
5. Fee agreements, bills and disbursements for the Neack and Bernard litigation
Mr. Voelker responds that he has already provided copies of all invoices from the county attorney's office;
6. List of all legal settlements paid by the Kenton County Fiscal Court from January, 1993 on all litigation (excluding condemnation suits), including the case, amount paid, and to whom paid
Mr. Voelker responds that this new request will require an extensive search, but that the search has commenced and that Mr. Deters may inspect the requested records when the search is completed;
7. Request for all public records relating to county attorney's operation of bad check prosecutions, and all public statistics kept by the state or the county attorney relating to child support and criminal prosecution in Kenton County from 1994 to the present
Mr. Voelker responds by reminding Mr. Deters that "no records exist concerning the 'operation of bad checks prosecutions' since the county attorney's office does not compile statistics. " He again directs Mr. Deters to the district court clerk's office for a review of existing records. He reiterates that he has furnished Mr. Deters with all available child support statistics, and confirms that no other responsive records exist.
Analysis
A cursory review of this abbreviated summary of the parties' written open records exchanges demonstrates the enormous scope of Mr. Deters' requests, and their often repetitive nature. What such a review does not disclose is why, despite Mr. Voelker's invitations to Mr. Deters to inspect many of the records identified in his requests, and despite the fact that Mr. Voelker's responses were accompanied by copies of many of the records identified in those requests, Mr. Deters asserts that as of July 3, 2001, the fiscal court and county attorney had complied with only three of those requests, producing the county and county attorney's budgets, the Newfarmer Report, and litigation records relating to the parking garage. It is by no means apparent why Mr. Deters was unable to avail himself of the opportunity to inspect, for example, the inactive Elfers' child support litigation files, records relating to the jail location, and those portions of the active Wessels, Neack, and Bernard litigation files for which no exemption was claimed. Nor is it apparent why Mr. Deters did not receive copies of all or any portion of available child support statistics, invoices submitted by the county attorney to the fiscal court, issues of "The Summons," bills and disbursements from the fiscal court to law firms, and legal settlements, when copies were mailed to him along with Mr. Voelker's responses. In general, this office cannot "adjudicate a dispute regarding a disparity between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. This is especially true when the "letter of appeal" is, for all intents and purposes, devoid of facts.
Nor can this office "confirm [that Mr. Deters'] requests" are properly framed records requests, and therefore "subject to the Open Records Act. " KRS 61.872(2) requires a requester to "describe" the records he wishes to access by means of on-site inspection. 1 In construing this provision, the Attorney General has observed:
[A]lthough the purpose and intent of the Open Records Act is to permit "free and open examination of public . . .," 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. Thus, in a series of opinions we have held that, in general, "[b]lanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-81; OAG 91-58.
95-ORD-108, p. 2, 3. "Where the records sought are of an identified, limited class," the Attorney General has concluded, "the requester satisfies the condition" of identifying the records with reasonable particularity. 92-ORD-1261, p. 3.
With limited exception, 2 the records to which Mr. Deters requested access were not identified with "reasonable particularity, " nor were they of an identified, limited class. Rather, his were the "open-ended-any-and-all records- that-relate-type of requests" that were criticized in 96-ORD-101 and 99-ORD-14. In the latter decision, this office recognized that:
A request for any and all records that 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 dispensed and ill-defined records.
99-ORD-14, p. 6. Further, we recognized that:
although "it is the legislative intent that public agency employees exercises 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 make extreme and unreasonable demands on their time." OAG 76-375, p. 4.
99-ORD-14, p. 5; see also 99-ORD-63. No doubt most of the records identified in Mr. Deters' ill-defined requests are records which the public is entitled to inspect. Nevertheless, such nonspecific requests as "all public records relating to the office of the county attorneys' operation of the bad check prosecutions," and "everything there is on the jail location issue" require a level of "patience and long-suffering" on the part of the agency that the legislature could not have intended. 3
We hasten to note, however, that neither the Kenton County Fiscal Court nor the Kenton County Attorney, to whom the requests were directed, argue that Mr. Deters' requests were so non-specific and broadly worded as to impose an unreasonable burden in producing the records. KRS 61.872(6). 4 Instead, the agencies proceeded to respond to each of the requests in writing, and in a timely fashion. KRS 61.880(1). Inevitably, some of these responses were substantively deficient. In the discussion that follows, we identify these substantive deficiencies, bearing in mind that in many instances the deficiency resulted from ambiguities in Mr. Deters' requests.
KRS 61.872(4)
We begin by noting that throughout the parties' written exchanges, Mr. Voelker evidences a belief that Mr. Deters' requests were only directed to the Office of the Kenton County Attorney, for which he does not serve as custodian of records, and not to the Kenton County Fiscal Court, for which he does serve as custodian. A close review of these exchanges demonstrates, however, that Mr. Deters' requests were directed to both agencies, and that he assumed Mr. Voelker served as custodian of records for both. Hence, in his January 15, 2001, application, he requested "[a]ll public records including correspondence and pleadings filed by the fiscal court and/or the county attorney's office pertaining to various cases to which the county was a party" (emphasis added). Similarly, in his January 17, 2001, supplement to that application, Mr. Deters again requested all correspondence and pleadings "filed by fiscal court and/or the county attorney's office . . ." (emphasis added.)
Mr. Voelker's belief that his requests were only directed to the county attorney are evidenced, on the other hand, by such statements as "[the requested record] is in the possession of the Fiscal Court, [but] since I serve as Records Custodian for the Fiscal Court, please advise [whether you wish to obtain copies or inspect the record]," "these records are kept with the Fiscal Court, not the county attorney's office [,and] I would like to reiterate that I serve as Records Custodian for the Fiscal Court, not the County Attorney's Office . . . ," and finally, "I informed you that I do not serve as Records Custodian for the Kenton County Attorney's Office [,but] have repeatedly attempted to accommodate your repeated requests." However, it does not appear that Mr. Voelker furnished Mr. Deters with the name of the records custodian for the Office of the Kenton County Attorney until June 7, 2001, when he advised, "Your requests concerning the Kenton County Attorney's Office should be directed to the County Attorney Garry Edmondson."
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody and 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.
Whatever Mr. Voelker's intentions in continuing to "accommodate" Mr. Deters' requests for records of an agency for which he did not serve as records custodian, we find that the better practice in such cases is to comply with the strict letter of KRS 61.872(4). 5 To the extent that Mr. Voelker failed to immediately discharge this statutory duty, his responses were substantively deficient. 6
KRE 503 and KRS 61.878(1)(l)
Mr. Voelker partially denied Mr. Deters' requests for records relating to the Wessels, Neack, and Bernard litigation, noting that with the exception of records on file in the Kenton County Clerk's Office, "all other documents pertain to ongoing litigation and therefore fall under the attorney client privilege." He did not elaborate. Because the fiscal court and county attorney failed to satisfy their statutory burden of proof relative to invocation of the privilege, we cannot affirm their denial of this portion of Mr. Deters' requests in toto. In support, we rely on KRS 61.880(2)(c) 7 and the Kentucky Court of Appeals' decision in Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996).
KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRE 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) establishes the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client[.]
Thus, the privilege consists of three elements: The relationship of attorney and client, communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed. Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3d ed. 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. The term "client" is defined to include "a person, including a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer . . . ." KRE 503(a)(1). The privilege extends to communications from attorney to client "if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence." Kentucky Evidence Law Handbook at § 5.10 citing United States v. Defazio, 899 F.2d 626, 635 (7th Cirri. 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Evidence Law Handbook § 5.10.
It has long been the position of this office that the mere invocation of any exception, without an adequate explanation of how the exception applies to the records withheld does not satisfy the burden of proof assigned to the agency under KRS 61.880(2)(c). This position finds support in Edmondson v. Alig, cited above. Construing KRS 61.880(1), the Court of Appeals notes that "the language of the statute directing agency action is exact." Edmondson at 858. The Court indicated that the statute requires "particular and detailed information" in response to a record request, and a "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act--much less . . . amount [] to substantial compliance." Id. To the extent that Mr. Voelker failed to provide particular and detailed information in response to this portion of Mr. Deters' requests, his responses were deficient. 8
The fiscal court and county attorney offer virtually no proof that all records pertaining to the litigation identified in Mr. Deters' requests were generated in the course of the attorney-client relationship, represent a communication by or to the client relating to the subject matter upon which professional advice was sought, and were handled in a confidential manner, thus qualifying for exclusion as records protected by the attorney-client privilege. Given the broad scope of his request, we believe it unlikely that every record generated in the course of this litigation, which would include billing statements (if handled by an outside law firm) , correspondence, and all other written or electronic communications, can properly be characterized as records qualifying for exclusion under the attorney-client privilege. As we noted at page 4 of OAG 91-109, an agency "cannot withhold every document which relates to a particular matter under KRS 61.878(1)[(l)] and the attorney-client/ work product doctrine."
Although the fiscal court and county attorney may properly withhold those records that satisfy the requirements of KRE 503, they are obligated to disclose all records that do not fall squarely within the parameters of the privilege, or another exception to public inspection.
Adequacy of responses based on nonexistence of records
In previous decisions, this office has addressed the question of how specific a public agency must be in denying the existence of records requested under the Open Records Act. In OAG 91-101, we held that a public agency's response is insufficient under KRS 61.880(1) if the response fails to advise the requesting party whether the requested records exist. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city 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.
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. In OAG 91-101, the record requested from the University of Kentucky was specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986." The agency's response neither admitted nor denied the existence of the minutes. We concluded that unless the agency was unable to determine whether the minutes exist, by virtue of the requester's failure to identify with reasonable particularity the meeting at which the minutes were taken, it must advise him whether they exist.
In 96-ORD-101, we were asked to determine if a request for "such records as will provide the basis for . . . [the] statement, as referenced in the . . . Courier Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $ 316,250 over the past five years" was sufficiently specific to require an unequivocal response. Noting that the requester had not requested a specific record, but had instead made an "open-ended and-and-all-records-that relate-type of request," we held that the city's general denial was appropriate. We observed:
Because [the requester] did not identify a specific record or records which he wished to inspect or describe such records with reasonable particularity, the city could not advise him whether they exist. To paraphrase an earlier open records decision, [the requester's] request was so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.
96-ORD-101, p. 3, citing OAG 91-58, p. 4. "To require an unequivocal denial of a nonspecific request for records," we concluded, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." 96-ORD-101, p. 3.
In reviewing Mr. Deters' remaining requests, we find that at least three were sufficiently specific to warrant an unequivocal response from the fiscal court and county attorney: His request for records relating to the employment of Sheryl Snyder, fee agreements with private attorneys such as Sheryl Snyder and Lawson Walker, and invoices submitted in the course of the Neack and Bernard litigation. Consistent with the principle that a public agency must "make a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested" set forth in 95-ORD-96, we believe it is incumbent on these agencies to continue to search for these records. 9 Ultimately, that search may not yield all of the records Mr. Deters believes to exist. Our analysis, however, turns not on whether the fruits of the agencies' search meet the requester's expectation, but whether they made a good faith effort to conduct such a search, and can then state, unequivocally, that no responsive records exist. In the absence of evidence calling into question the fiscal court's and county attorney's good faith, we must conclude that the Open Records Act requires nothing more. The Kenton County Fiscal Court and Kenton County Attorney "cannot furnish that which they do not have, and are not required to create that which was never created." 98-ORD-154, p. 5.
Conclusion
As we have so often noted, the Open Records Act is not "intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information." OAG 89-81, p. 4. Instead, "it is intended to provide for inspection of reasonable described records held by public agencies." Id. The record before us indicates that Mr. Deters' has been invited to inspect a large number of records, and has received copies of many others. Without explanation, he states that he has only been afforded access to budgets, the Newfarmer Report, and the parking garage litigation files. As stated above, we cannot "adjudicate a dispute regarding a disparity between records for which inspection has already been permitted, and those sought but not provided." Id. In the final analysis, "we assume a modicum of good faith from both parties to an open records appeal: From the requester in formulating his request, and from the official custodian in providing the records that satisfy the request." 93-ORD-15, p. 6. Consistent with directives set forth above, we encourage the parties to this appeal to work, in a spirit of cooperation, toward full disclosure of all non-exempt public records, and an amicable resolution of their dispute.
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 Compare KRS 61.872(3)(b), requiring requesters who wish to access public record by means of receipt of copies through the mail to "precisely describe" records which are "readily available within the public agency. " This language has been construed to require the requester to frame his request "in definite, specific and unequivocal terms . . . ." 97-ORD-46, p. 7.
2 This exception includes Mr. Deters' requests for the fiscal court and county attorney's budgets, the Newfarmer Report, and fee agreements with Sheryl Snyder.
3 Does Mr. Deters' request for records relating to bad checks prosecution include, for example, payroll records and employee time sheets for persons employed in the program, as well as interoffice memoranda and correspondence pertaining thereto? Does Mr. Deters' request for "everything" related to the jail location issue include, for example, records generated in the course of the open meetings appeal filed by Terry Whittaker that culminated in 00-ORD-63, as well as the circuit court challenge to that decision?
4 KRS 61.872(6) authorizes public agencies to refuse to permit inspection of records or mail copies thereof "if the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency" if the agency can sustain its refusal by clear and convincing evidence.
5 Mr. Voelker does not indicate whether the Kenton County Attorney's Office has implemented the statutory mandate found at KRS 61.876(1) and (2) by adopting and displaying, "in a prominent location accessible to the public," rules and regulations aimed at "provid[ing] full access to public records, " including "[t]he title and address of the official custodian of the public agency's records."
6 We note that Mr. Voelker implicitly fulfilled the requirements found at KRS 61.872(4) with respect to Mr. Deters' request for records relating to the Kenton County Jail and the Children's Law Center when he advised Mr. Deters that these records were in the custody of the law firm of Williams and Wagoner, notwithstanding the fact that the firm no longer exists. This assumes, of course, that duplicate copies were not in the custody of the fiscal court or county attorney.
7 KRS 61.880(2)(c) assigns the burden of proof in an open records appeal to the public agency.
8 Mr. Voelker's terse response to Mr. Deters' request for records relating to child support that are in the custody of the county attorney was also deficient under the rule announced in Edmondson v. Alig, above. He denied the request, asserting that the records were "personal and private in nature . . . ." To the extent that he failed to cite an exception authorizing nondisclosure, and provide detailed information on how the exception applied to the records withheld, Mr. Voelker's response was deficient.
9 The same analysis must be applied to those categories of records for which an ongoing search was, and we trust, is being made. This includes copies of legal settlements, bills and disbursements, fee agreements, issues of "The Summons," invoices for legal services, and child support statistics. The fiscal court and county attorney must make a good effort to conduct a search using all methods that could reasonably be expected to produce the records requested.