Request By:
Richard Clay
319 W. Main Street
P.O. Box 1256
Danville KY 40423Deborah Garrison
Department of Public Advocacy
100 Fair Oaks Lane, Ste. 302
Frankfort KY 40601Larry D. Beale
General Counsel
Department of Public Advocacy
100 Fair Oaks Lane, Ste. 302
Frankfort KY 40601
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy's responses to the open records request of Richard Clay violated the Open Records Act. We conclude that the responses were consistent in part and inconsistent in part with the Act.
By letter dated November 7, 2001, Mr. Clay requested copies of the following Department records:
1. Complete file concerning evaluation of proposed lease of office space at 125 North 4th Street, Danville, Kentucky, by the Department of Advocacy;
2. All documents concerning leasing of property by Department of Public Advocacy in Danville, Kentucky, within the last twenty-four (24) months;
3. All documents by or concerning Martin Sullivan, Beverly Sullivan, Russell Abraham, Andrea Abraham and The Sports Center of Danville, LLC.
Responding on behalf of the Department, Deborah Garrison, Open Records Officer, and Larry D. Beale, General Counsel, by letter dated November 15, 2001, acknowledged receipt of his letter on November 13, 2001 and advised Mr. Clay:
We have reviewed our files and find them to contain records pertinent to your request and available for copying and inspection under the Open Records Act. If you desire to inspect these records located at the Department of Public Advocacy in Frankfort, you may do so by contacting Deborah Garrison at (502) 564-8006, ext. 108.
However, if you wish the Department of Public Advocacy to copy these documents, you are requested to pay in advance a cost of 10 cents per page.
By letter dated November 16, 2001, Mr. Clay replied to the Department's response, stating:
Thank you for your letter of November 15, 2001. I thought my letter was clear in asking for copies of these records. That should answer your question about whether I want to inspect them on site. You have asked for payment in advance, which is a new one to me, but you have not stated the number of pages that you would copy or a total requested. I believe that conduct obstructs the policy of prompt and complete disclosure underlying the Open Records Act.
The case for which I needed these records is scheduled for trial December 14. How about bringing them there. Subpoenae are out.
By letter dated November 19, 2001, Ms. Garrison and Mr. Beale responded to Mr. Clay's reply, advising him:
Thank you for your letter of November 16, 2001 regarding your request for public records. The Department of Public Advocacy will make available for your inspection records contained in the file concerning our decision regarding the location of an office in Danville, Kentucky. That file contains our decision to lease a location other than your own as well as some preliminary documentation of how we arrived at that decision. These records will be available for your inspection in Frankfort the week of November 26-30. You may wish to call prior to travelling to Frankfort, however.
As to your request in subsection 3 for "[A]ll documents by or concerning Martin Sullivan, Beverly Sullivan, Russell Abraham, Andrea Abraham and The Sports Center of Danville, LLC." You will be required pursuant to KRS 61.874(4)(b) to submit a certified statement of commercial purpose as defined in KRS 61.870(4)(a). You may wish to bring the certified statement with you on the date you decide to review the records.
In his letter of appeal, dated November 26, 2001, Mr. Clay challenges the Department's responses concerning the copying of the records. In his letter, he states:
The Department has refused my request to identify the number of documents to be copied, for which it seeks advance payment. The per page charge is reasonable, but I do not know the amount. Also, I do not believe the law requires me to travel to Frankfort to discover this information. It has added at the end game a request for certification, despite my statements that I intend to use the information in litigation and KRS 61.870(4)(b)(3).
After receipt of notification of the appeal and a copy of Mr. Clay's letter of appeal, My. Beale provided this office with a response to the issues raised in the appeal. In his response, Mr. Beale stated, in pertinent part:
1. In its November 15, 2001 initial and timely response to Mr. Clay, DPA advised him it had identified records pertinent to his request and made them available for inspection and copying upon his request.
2. In his November 16, 2001 reply, Mr. Clay informed DPA he intended to subpoena the records he had previously sought in preparation for a trial. His reply indicates he sought a method other than the Kentucky Open Records Act's provisions to obtain certain records, thereby putting us on notice of an impending subpoena rather than the inspection of records.
3. On November 19, 2001 DPA responded to Mr. Clay stating that it had made available for his inspection and copying records concerning its decision regarding the location of an office in Danville, Kentucky, and its decision to select a location other than the location he had identified, that other preliminary documentation also existed and would remain available for his inspection the week of November 26-30, 2001. However, it is our position that certain documents described as concerning other individuals not a part of DPA staff and ordinarily not disclosable under KRS 61.878(1)(i), and indicating a commercial purpose on the part of Mr. Clay would require a certification by him pursuant to KRS 61.870(4)(a) .
4. DPA has not refused Mr. Clay's request to identify the number of documents to be copied, as he has never completed the DPA form indicating his desire to have copied for him by DPA certain specified documents at a certain cost. The existence of records containing preliminary recommendations, and preliminary memoranda in which opinions are expressed and not subject to disclosure have been made known to Mr. Clay and an opportunity to inspect and copy the otherwise disclosable records has been available to him since November 15, 2001.
We are asked to determine whether the responses of the Department complied with the Open Records Act. For the reasons that follow, we conclude that the actions of the Department were consistent in part and inconsistent in part with the Act.
In 97-ORD 16, this office considered a public agency's duties relative to providing copies of public records upon request. At page 2 and 3 of that decision, we observed:
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
The Open Records Act thus 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 whose residence or principal place of business is outside 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.
Mr. Clay's principle place of business is in Danville, Boyle County, Kentucky and the requested records are located in Franklin County, thus he satisfies the "outside the county" requirement of KRS 61.872(3)(b). A second requirement of the statute places a burden on the requester who wishes to access public records through the mail to "precisely describe" the records he seeks.
In 97-ORD-46, this office observed the following relative to the burden placed upon requesters seeking copies of records by mail:
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 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.
Thus, an "outside the county" requester that elects to access public records through the mail rather than to make an on-site inspection bears a greater burden in describing the records he is asking the agency to locate, copy, and mail to him.
This office has criticized "open ended any-and-all-records-that-relate-type of requests" in 96-ORD-101 and 99-ORD-14, or the "broad discovery request[s]" in 00-ORD-79. Although Mr. Clay's request was broad and requested "all" records concerning the proposed leasing of office space in Danville, Kentucky, and documents relating to certain named individuals, and were not precisely described, they were apparently of an identified, limited class. This is evidenced by the Department's response that it had reviewed its files and had found records "pertinent" to this request and would make them available for his inspection. Thus, at least to these documents, Mr. Clay would be entitled to copies as an "outside the county" requester.
In his letter of appeal, Mr. Clay challenges the Department's refusal to identify the number of documents to be copied and its requirement of prepayment for the copies. In this regard, the Department should advise Mr. Clay as to the number of records to be copied in order for him to know both the volume of records involved and the amount he must pay for the copies.
The Department indicated that Mr. Clay had not completed the DPA form indicating his desire to have copied certain specified records at a certain cost. Of course, he could not know the amount to prepay until the number of copies was known. The fact that Mr. Clay did not use the agency's form in his open records application cannot serve as a valid basis for denying a request. In 94-ORD-101, this office held:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
However, the Department may require prepayment for the copies, prior to mailing them. When copies are requested, the agency may require advance payment, including postage, prior to mailing the copies. KRS 61.874(1).
Mr. Clay also challenges the Department's request for him to submit a certified statement of commercial purpose, pursuant to KRS 61.874(4)(b), as defined in KRS 61.870(4)(a).
In its response to this office, the Department indicated that it requested Mr. Clay to supply certified statement of commercial purpose as defined in KRS 61.870(4)(a) as it was their understanding he was requesting the records for a purpose relating to the commercial leasing of properties held by his client in Danville, Kentucky.
Mr. Clay argues that he should not be required to submit a certified statement of commercial purpose, as he had indicated that he intended to use the requested records in litigation, citing KRS 61.870(4)(b)(3), which excludes from the definition of commercial purpose, "[u]se of a public record in the prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties[.]"
In our view, this issue arises from a problem with communication and misunderstanding between the parties, rather than an attempt by the agency to subvert the intent of the Open Records Act. It is unclear whether all the requested records will be used by Mr. Clay in litigation or whether some are to be used for a purpose relating to the commercial leasing of properties held by his client.
The parties should discuss the use and then proceed accordingly. If some of the records are to be used for a commercial purpose, the Department may require a certified statement of commercial purpose. In 93-ORD-14, we held that an agency may require a generalized statement of the intended use of the public record when such is necessary to aid in the determination of appropriate fees to be assessed should the request involve use of the non-exempt records for a commercial purpose. However, the agency may not deny access to records because they are requested for this purpose. 01-ORD-8. If all the records are to be used in litigation, then a certified statement of commercial purpose would not be required. KRS 61.870(4)(b)(3).
The parties, in a spirit of cooperation, should engage in efforts to resolve any ambiguities or present clarifications regarding this open records request in order to avoid unnecessary litigation or appeals.
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.