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 Department of Alcohol Beverage Control violated the Open Records Act in the disposition of the September 10, 2001 records request submitted by appellant Daniel P. Cherry's colleague Gregory E. Mayes. For the reasons that follow, and on the authorities cited, we affirm ABC's disposition of Mr. Mayes' request.
Mr. Mayes and Mr. Cherry represent Knockout Sports Saloon, Inc., an establishment that holds a liquor by the drink license. ABC has cited Knockout for violation of KRS 244.090(1)(c), relating to employment of a person under the age of twenty. A hearing on this matter has been or will be 1 conducted under Chapter 13B of the Kentucky Revised Statutes. In an attempt to obtain "document evidence" from ABC, on September 10, Mr. Mayes submitted a written request for the following information and evidence:
1. All evidence or information arising out of or related to the Order to Show Cause.
2. Identify any persons (or establishments) cited for a violation of KRS 244.090(1)(c) in the three years preceding the issuance of the citation report which is the subject of this hearing and the disposition of those citations.
3. Identify those persons (or establishments) with LD licenses in Jefferson County and, if available, information as to the percentage of food and alcohol sales for those establishments in the three years preceding the issuance of the citation.
On September 12, ABC staff attorney Stephen B. Humphress responded to Mr. Mayes' request by furnishing him with copies "of all documentary or tangible evidence relating to this matter." Mr. Humphress characterized requests 2 and 3 as "improper interrogatories in an administrative proceeding," noting that Chapter 13B "does not authorize interrogatories and production of documents requests." Nevertheless, Mr. Humphress advised, "citizens are entitled to inspect certain public records pursuant to the Open Records Act, " and indicated that ABC would treat requests 2 and 3 as open records requests.
With reference to each of these requests, Mr. Humphress observed:
In request no. 2, you seek information as to all licensees whom the Department has cited for violation of KRS 244.090(1)(c) for the last three (3) years. The Department does not prepare or retain a record that contains such a list or summary of requested information. However, the Department does maintain Order books that contain information as to all licensees' cited violations. The Department will make said Order books available for your inspection and copying at the Department's office on a date and time convenient for you. The cost of the copies (KRS 61.872(3)(b)) is $ .10 per page.
In request no. 3, you seek all licensees possessing LD licenses in Jefferson County and information relating to their respective percentages of food and alcohol sales for the last three (3) years. As to the first part of the request, a list of all licensees with LD licenses in Jefferson County is available for inspection and copying. It is estimated that said list will consist of thirty (30) pages at a cost of $ 3.00 (30 x $ .10). Please advise as to whether your client wishes to incur said cost, and if so, said list will be copied and provided to you.
As to the food/ alcohol percentage request, the Department does not prepare or retain a record that contains such a list or summary of requested information. Additionally, licensees with LD licenses do not submit such information; rather licensees with RD licenses submit same. It may be that you desire a list of all licensees with RD, not LD, licensees. Regardless, the Department maintains a physical file on licensees. The Department's physical file for licensees with RD licensees should contain information as to the food/ alcohol sale percentages. The Department will make said files available for your inspection and copying at the Department's office on a date and time convenient for you.
In a supplemental response dated September 21, ABC General Counsel Rebecca W. Goodman elaborated on the department's position. She reiterated:
[T]he information you requested in the second request [is] not available. The Department does not require that LD licensees file that information, thus it does not exist anywhere within the Department. . . . [T]he information in the first [request] described above (regarding licensees who have been cited in the last three years for the same offense) was not readily available. The Department maintains an Order book and lists of all orders issued by the Board. Those lists do not indicate what the licensee was charged with or the disposition of the charges [sic]. If these documents are in any way helpful to you, you are welcome to inspect them and obtain copies for 10 cents per page.
In more general terms, Ms. Goodman observed:
The Department cannot comply with your request to provide the identity of all licensees who have been cited for the same offense within the last three years and to investigate and report back to you the disposition of those cases. That information is available from various sources within the department, but in order to "identify" it for you a considerable amount of manual legal research and cross matching of reference materials must be done. The Department is not required to perform your research and otherwise prepare your case for you. See, OAG 90-45. I once again renew our offer to make all this information available to you any time between 8:00 a.m. and 4:30 p.m. Monday through Friday.
The purpose of the Open Records Act is to allow "free and open examination of public records. " KRS 61.871. A person cannot examine a record that does not exist. As explained in one opinion, an agency is not required to compile a list and "what the public gets is what the agency has and in the format in which the agency has it." OAG 91-12. Again, you are welcome to inspect and copy any of these records.
Mr. Mayes responded to ABC's position in a letter dated September 21, challenging the department's analysis of his right to access records identifying persons or establishments cited for violation of KRS 244.090(1)(c) by receipt of copies of those records through the mail. He maintained that Knockout's request "is within the definition of 'available documentary or tangible evidence relating to the administrative hearing' or alternatively, is required to be produced pursuant to the Kentucky Open Records Act. " Further, he asserted:
Your continuing response ignores that we have a right to receive a copy of this information by mail since Knockout's principal place of business is in Jefferson County. Further, we have identified with "reasonable particularity" those records which we wish to review. The Department now bears the burden of establishing, by clear and convincing evidence, that this request imposes an unreasonable burden on it. See, for example, OAG 90-112 and OAG 95-ORD-2. Your explanation fails to establish by clear and convincing evidence that our request is unreasonably burdensome.
Unable to reach an agreement relative to "alternative means to obtain the information," Mr. Mayes' colleague, Mr. Cherry, initiated this appeal on October 24, arguing that Knockout's request is "specific and proper," that the record does not support ABC's claim of unreasonable burden, and that pursuant to KRS 61.872(3)(b) Knockout is entitled to receive copies of the records identified in its requests by mail because it is located in Jefferson County and those records are located in Franklin County.
Upon receipt of this office's notification of Mr. Cherry's open records appeal, Ms. Goodman further supplemented ABC's response. She explained:
There is no record or document maintained by the Agency that satisfies the Licensee's request sufficient to "identify" all persons cited for the same violation, and the disposition of the citation for the last three years. There is presently no database available from which the agency could create a report to reflect that information. As the agency suggested to the licensee once before, it is possible to go through the ABC Order books and see all the licensees cited, what they were cited for, and the disposition of those citations. There are approximately 8,000 potential licensees who could have been cited and approximately 3,000 citations issued by the department over the last three fiscal years. By far the easiest way to obtain the information is to peruse the Order books or the licensing files, both of which are available to the licensee for inspection at any time.
There is no record or document maintained by the Agency that satisfies the Licensee's request to provide information as to the percentage of food and alcohol sales for those establishments (LD Licensees in Jefferson County) for the last three years. The only licensees required to file that information with the Agency are RD Licensees. Note that the agency has already provided the Licensee with a list of all LD licensees within Jefferson County.
In response, Mr. Cherry reaffirms that "Knockout is simply requesting that the Department provide documents in accordance with KRS 13B showing citations of the Department's licensees for the same violation Knockout is alleged to have committed and documents showing the final disposition of these citations, both for the last three years." He characterizes the request as "a specific and limited discovery request for document production," noting that it is ABC that "insists on characterizing it as an open records request." Mr. Cherry rejects ABC's "vain [] attempts to satisfy its obligations under the Open Records Act by simply opening up its books and records for inspection, " insisting that the Act "clearly requires more from the Department," including the requirement that it "mail responsive copies to the out of town requestor," or "disclose if there are no documents that are responsive to the request." Respectfully, we disagree.
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In construing these provisions, the Attorney General has 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. 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 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.
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. 2, 3 (emphasis added).
Knockout Sports Saloon, Inc. is located in Jefferson County, Kentucky. The records that are arguably responsive to Knockout's request are located in Franklin County, Kentucky. Knockout satisfies the first requirement of KRS 61.872(3)(b). The narrow issue, therefore, is whether Knockout's attorneys "precisely described" the records, and whether those records "are readily available within the public agency. " Contrary to the views expressed by Mr. Mayes and Mr. Cherry, an out-of-county residence or place of business does not automatically qualify a requester to receive copies of records through the mail. Accord 00-ORD-75 (residence in Washington, D.C., did not automatically qualify requester to receive copies of records by mail. ) Pursuant to KRS 61.872(3)(b), those records must be precisely described and readily available within the public agency.
Mr. Mayes asked that ABC furnish him with copies of records identifying "persons (or establishments) cited for a violation of KRS 244.090(1)(c) in the three years preceding the issuance of the citation report which is the subject of this hearing and the disposition of those citations." 2 In subsequent correspondence submitted on behalf of Knockout, Mr. Cherry notes that "KRS 13B.120(5) requires the Department to transmit to each party or its attorney of record a copy of any final order. Therefore, a copy of any such order should exist in a licensee's file." So described, we believe Knockout's request to be precise, notwithstanding the fact that it covers a broad range of records. Thus, we believe that Knockout satisfies the second requirement of KRS 61.872(3)(b) insofar as its attorneys precisely describe the records to which access is sought. Accord, 97-ORD-46 (language of request that tracks language of statute relating to creation of record is precise).
Nevertheless, we find that the record supports ABC's claim that the requested documents are not "readily available within the public agency. " With reference to the third requirement found in KRS 61.872(3)(b), this office has observed:
The third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
97-ORD-46, p. 5 (emphasis added). We did, however, note in 97-ORD-46 that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." 97-ORD-46, p. 5.
In the course of its communications with Knockout's attorneys, ABC has consistently demonstrated the difficulties associated with compiling the records sought. In his initial response, Mr. Humphress indicated that responsive records are not compiled in a list or summary. In supplemental responses, Ms. Goodman states that responsive records are not "readily available, " but may be accessed through "various sources within the Department." Following commencement of this appeal, Ms. Goodman fully expounded upon the difficulties associated with identification, location, and retrieval of responsive records, advising that no single record identifies persons or establishments so cited and no database exists from which the records or information can be extracted. Ms. Goodman states that some three thousand citations have been issued by ABC in the past three years, and records responsive to Knockout's request can only be located by means of a manual search of its order books and licensing file. ABC has repeatedly extended an offer to Knockout to conduct its own on-site inspection of both the order books and licensing files. Inasmuch as the records sought are not readily available with the agency, the Open Records Act does not require more.
Our analysis is not altered by the authorities cited by Knockout's attorneys in support of their client's position. 99-ORD-107, affirming a correctional facility's denial of an inmate's duplicative request for medical records, has no bearing on the issues presented in this appeal. 98-ORD-45 and 98-ORD-92, holding that the Cabinet for Families and Children and the Legislative Research Commission failed to adduce clear and convincing evidence that the requests submitted to them were unreasonably burdensome within the meaning of KRS 61.872(6), is largely inapposite insofar as the issue before us is whether records are readily available and therefore must be mailed. And 95-ORD-2, 97-ORD-46, and 99-ORD-67 support, rather than undermine, ABC's position. In 95-ORD-2, the Kentucky Revenue Cabinet refused to permit the requester to exercise his right to inspect responsive records in its custody. Here, ABC has extended an offer to Knockout's representatives to conduct a search, and Knockout has declined the offer. In 97-ORD-46, the Kentucky Labor Cabinet failed to make a sufficient showing that the records to which access was sought by receipt of copies through the mail were not readily available within the agency. Here, ABC makes a clear showing that responsive records are difficult to identify, locate, and retrieve. Similarly, in 99-ORD-67, the Trimble County Fiscal Court did not assert that the records to which access was sought by mail were not precisely described or readily available within the agency. Here, the case is made that the records cannot be easily identified, located, or retrieved. As noted above, in such instances a public agency fully discharges its duty under the Open Records Act by making records available for inspection. This ABC has done, and it need do no more.
In closing, we are obliged to state that in the role assigned to him under KRS 61.880(2) the Attorney General is not empowered to adjudicate records access disputes arising under Chapter 13B of the Kentucky Revised Statutes. Knockout characterizes its request as a "discovery request for document production," criticizes ABC for treating the request as an open records request, but elects to initiate an open records appeal to the Attorney General under the cited provision. As we are statutorily bound to do, we have reviewed the record on appeal, consisting of Mr. Mayes' requests, ABC's response, and subsequent correspondence directly pertaining to the issue of access under Chapter 61. Based on this review, we conclude that ABC did not violate the Open Records Act in the disposition of Knockout's request.
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.
Daniel P. CherryGreenebaum, Doll & McDonald, PLLC3300 National City Tower101 S. 5th StreetLouisville, KY 40202-3197
Gregory E. MayesGreenebaum, Doll & McDonald, PLLC3300 National City Tower101 S. 5th StreetLouisville, KY 40202-3197
Stephen B. HumphressStaff AttorneyDept. of Alcoholic Beverage Control1003 Twilight Trail, Ste. A-2Frankfort, KY 40601
Rebecca W. GoodmanGeneral CounselDept. of Alcoholic Beverage Control1003 Twilight TrailFrankfort, KY 40601
Footnotes
Footnotes
1 That hearing was scheduled to occur on November 14, 2001. On October 26, 2001, Mr. Cherry filed a Motion to Continue Hearing with ABC "in order to allow time for the Attorney General's decision on the Open Records issue." We have not been apprised whether a continuance was granted.
2 ABC's disposition of 1 and 3 of Mr. Mayes' original open records application are apparently not disputed.