Request By:
Stephen C. Emery
1400-B Waterfront Plaza
325 W. Main Street
Louisville, KY 40202-4251Mayor Joseph Sohm
City of Shepherdsville
P.O. Box 400
Shepherdsville, KY 40165Norman R. Lemme
P.O. Box 770
Shepherdsville, KY 40165-0770
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 Office of the Mayor of the City of Shepherdsville violated the Open Records Act by failing to respond to Stephen C. Emery's February 26, 2002 request for "the audio and videotape(s) recorded of the traffic stop of [Mr. Emery's clients,] Peggy and Gobel Newsome, the arrest of Peggy Newsome, and Officer Dawson's putting Gobel Newsome into the police car and taking Gobel Newsome to the Love's truck stop, on or about November 17 and/or 18, 2001." For the reasons that follow, we find that Mayor Joseph G. Sohm erred in failing to respond to Mr. Emery's open records request notwithstanding the fact that Mr. Emery submitted multiple requests for the same tape to other officials in city government.
In his letter of appeal, Mr. Emery acknowledged that similar requests were submitted to Shepherdsville Chief of Police Ronald Morris 1 and City Clerk Tammy Owen. 2 However, he explained:
It is my reasonable belief that more than one copy of the tape that was requested exists. For that reason, these multiple requests were made. I allowed everyone the opportunity to respond in a timely manner. While City Clerk Owen and Chief Morris have responded to their requests in a timely manner, Mayor Sohm has not responded at all .
(Emphasis in original.)
In a letter directed to this office following commencement of Mr. Emery's appeal, Mayor Sohm answered the charge leveled against him:
If the request to me is counted, the Newsomes individually or through their representatives have made a total of seven (7) demands for this audio/ video tape. The first time was on December 26, 2001, when a Court subpoena with NO indication of the Court, the Court case, the Case Number or even the Parties was served upon the Chief of Police by Mr. Newsome. The last request by both Mr. and Mrs. Newsome was on February 28, 2002, to which the Chief of Police responded, as he did to Mr. Emery's request two days earlier, that the tape was not then available as it is part of an ongoing internal investigation. (This request is in addition to the "three requests" made by Mr. Emery on February 26, 2002.) The City Clerk also responded to both the February 26th and the 28th requests in writing advising that the actual custodian of the tape (the Chief of Police) answered the request.
KRS 83A.085 3(b) [sic] makes the City Clerk the official "custodian" with respect to KRS 61.870 through 61.882. (The open records statutes.) Both the legal custodian and the de facto custodian responded to Mr. Emery's request. Mr. Emery has appealed that and you are handling that issue under Log Number 200200110. Since the Chief of Police answered the request and the City Clerk advised that the actual custodian of that record had responded to the request, I am at a loss to understand why a request to a public official not charged with the duty of maintaining the records which was answered by the legal custodian and the de facto custodian and which is on appeal before the Attorney General requires any response from me.
Nevertheless, Mayor Sohm advised that he does not have the tape, that the tape is in the possession of the Chief of Police, and that the Chief has responded to Mr. Emery's request. 3 In closing, Mayor Sohm asserted that because KRS 61.872 requires submission of an open records request to the "official custodian, " and because both the official custodian and the de facto custodian have responded, he has no additional obligation to respond. Mr. Emery's appeal, he opined, "seems intentionally burdensome."
While we appreciate Mayor Sohm's frustration at the multiple requests submitted by Mr. Emery for the same record, we do not believe that his exhaustive efforts to obtain the tape contravene the Open Records Act, or that the fact that Mayor Sohm was not the custodian of the record, official, de facto , or otherwise, relieved him of the duty to respond to the request Mr. Emery submitted to him. This is especially true in light of the fact that the city's official custodian of records provided scant information in her response, and in light of Mr. Emery's apparently mistaken belief that additional copies of the tape exist.
A public agency to which an open records request is made must comply with KRS 61.880(1) in responding to that request regardless of whether it has custody or control of the requested records. KRS 61.880(1) 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 procedural requirements of the Open Records Act, " this office has often observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p.5. Nothing in the statute relieves the agency of the duty to comply with these requirements because requests for the same record have been submitted to, and responses have been issued by, other public agencies governed by the provisions of the Open Records Act.
Pursuant to KRS 61.870(1)(a), Mayor Sohm is a public agency for purposes of the Open Records Act. That provision defines the term "public agency" to include "[e]very state or local government officer." Pursuant to KRS 83A.035(3)(b), the Shepherdsville City Clerk performs the duties required of the "official custodian" or "custodian" under the Open Records Act for the city. It is by no means clear that she performs the duties required of the "official custodian" or "custodian" under the Open Records Act for the Mayor as a separate public agency. If this is the case, Mayor Sohm could have properly responded to Mr. Emery's request by notifying Mr. Emery in writing, and within three business days, that he did not have custody or control of the tape and furnishing Mr. Emery with the City Clerk's name and location per KRS 61.872(4). Because the only copy of the tape is apparently that copy that is in the custody of the Chief of Police, and because the City Clerk had apparently elected to defer to the Chief in responding to Mr. Emery's requests, the better approach might have been to notify Mr. Emery that he (the Mayor) did not have custody or control of the tape and that the tape was in the physical possession of the Chief of Police. In either event, a timely written response of some kind was statutorily required by KRS 61.880(1), and the Mayor's failure to respond in any fashion was inconsistent with the requirements of the Open Records Act.
This decision should not be construed as a license for open records requesters to blanket a public agency or agencies with multiple requests for the same record in order to harass the agency or to create an undue burden on the agencies. We believe that KRS 61.872(6) 4 is sufficient to address this problem. In the appeal before us, we find insufficient evidence to support a claim of harassment or undue burden based on multiple requests given the brevity of the City Clerk's response, her decision to defer to the Chief of Police in this matter, and Mr. Emery's belief that multiple copies of the tape exist.
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.
Footnotes
Footnotes
1 Mr. Emery appealed Chief Morris' denial of this request to this office. Prior to the issuance of an open records decision in that appeal, Chief Morris agreed to release the tape. Pursuant to 40 KAR 1:030 Section 6, the Attorney General therefore declined to issue a decision in the appeal.
2 Ms. Owens' response indicated that "The custodian of the records answered this request." She did not elaborate.
3 Mayor Sohm expresses "great [] concern []" about the implication in Mr. Emery's letter of appeal that "the Chief has been lied to, or is lying when he wrote [the Attorney General] that he knows of only one tape. " While we do not mean to underestimate the seriousness of Mayor Sohm's concerns, we are not empowered to require Mr. Emery to "immediately supply [Mayor Sohm], the City Attorney, County Attorney, Commonwealth Attorney or [the Attorney General] the factual basis for his statement that more than one copy of the tape exists." Our duty is narrowly defined at KRS 61.880(2)(a) and is limited to issuing a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
4 KRS 61.872(6) provides:
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, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.