Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the responses of the Offices of the Bullitt County Fiscal Court Clerk; County Judge/Executive; and Animal Control Officer to the open records requests of Buddy Michael violated the Open Records Act. We conclude the responses were consistent in part and inconsistent in part with the Act.
By letter dated April 19, 2002, Mr. Michael, Community Pet Relief Fund, Inc., made identical requests to the Bullitt County Fiscal Court Clerk; Judge/Executive; and Animal Control Officer for the following records:
1. All documents, invoices, requests for payment, bills or other means of initiating payment or reimbursement submitted by, or on behalf of, dog warden to Fiscal Court or any representative since October 1, 2000.
2. Records, including but not limited to cancelled checks, warrants or journal entries, reflecting all payments to dog warden, and Bullitt Co. Animal Shelter for services performed and for expenses reimbursed since October 1, 2000.
3. Any Fiscal Court resolution designating, appointing or authorizing any person to act as the dog warden for Bullitt County during the period October 1, 2000 to present.
4. Any documents considered or relied upon by Fiscal Court in designating or appointing any person to act as the dog warden for Bullitt County during the period October 1, 2000 to present.
5. All reports, documents, summaries, descriptions or accounts of the official activities of any person authorized to act as dog warden in Bullitt County during the period October 1, 2000 to present.
6. All reports, documents, summaries, descriptions or accounts of animal control activities, including operation of an animal shelter during the period October 1, 2000 to present for Bullitt County.
7. All reports, documents, summaries, descriptions or accounts regarding the collection and/or the disposition of any animal by any person authorized to act as the dog warden in Bullitt County from October 1, to present. This includes, but is not limited to, any documents, reports, summaries, descriptions, internal daily activity logs, any documentation regarding the policies and procedures for the intake of animals, whether owner released or stays, policies and procedures for contacting owners when the animal is collared/tagged, policies and documents regarding the state mandated holding period for lost or stray animals.
8. All policies, procedures, descriptions, accounts, invoices, bills, professional service fees, etc., specifically related to the collection, treatment and disposition of injured and/or dying and dead animals. Items included in this request include but are not limited to, policies and procedures related to veterinary contact and care, procedures for identifying and/or contacting potential owners, policies and procedures for contacting law enforcement regarding potential violation of cruelty to animal statutes, policies and procedures for the disposition of the carcass of unclaimed animals, from October 1, 2000 to present.
9. All reports, documents, summaries, descriptions or accounts regarding the daily, weekly, monthly euthanasia and disposition schedule regarding unclaimed or abandoned animals from October 1, 2000 to present.
10. All reports, documents, summaries, descriptions, or accounts regarding the training and/or qualifications of the dog warden and shelter assistants, and the policies and procedures utilized for the method of euthanasia for the animals at the Bullitt County Animal Shelter.
11. Invoices, bills, requisitions, purchase orders, warrants or other documentation for property or supplies purchased or leased for the operation of an animal control shelter or for care of animals from October 1, 2000. Items in this request include, but are not limited to, animal food, cages, gas and vehicles, vaccines, or any other material used to operate a shelter.
12. Any document, which indicates the fees paid, if any, to any person acting as the dog warden of Bullitt County during the period October 1, 2000 to present.
13. Invoices, purchase orders or other requests for payment from any veterinary service provider submitted to the Dog Warden or the Fiscal Court of Bullitt County, during the period October 1, 2000 to present.
14. All reports, summaries, descriptions, cancelled checks or any other documentation related to the receipt and distribution of any Commonwealth of Kentucky monies received by Bullitt County for the purpose of improving the dog pound, its environs or for any purpose related to the animal care and control in Bullitt County.
15. Any documentation indicating any expenditure from the special enforcement fund mandated by KRS 258.195(2) during October 1, 2000 to present.
Under the terms of KRS 61.872(3)(b), I elect to have copies of the documents responsive to these requests mailed to me at the above address. Recent court rulings have held that 10 cents is a reasonable charge for copies, which we will be pleased to pay, in addition to the cost of mailing. In the course of other requests, we have been able to forward payment after receipt of the documents; if you require payment in advance, please contact me at the above number.
By letter dated April 25, 2002, Robert P. Flaherty, Bullitt County Deputy Judge/Executive, responded to the requests on behalf of the Bullitt County Fiscal Court, the Office of the Bullitt County Judge/Executive, and the Bullitt County Animal Control Officer. In his response, Judge Rigdon advised:
In general response to the entire application, the requested information/ document(s) cannot be provided by the above-referenced responders based upon the following. First, the "official custodian" of public records for Bullitt County Fiscal Court pursuant to KRS 61.870(3) is the Office of the Bullitt County Clerk. You may contact the County Clerk's Office at 502-543-2513 during normal business hours to make arrangements for review or copy of the requested information/ document(s). Any public records that may be provided by the other agencies petitioned would be unnecessarily duplicitous.
In addition, the Open Records request is overly broad and non-specific. Producing the information/document(s) requested would place an unreasonable burden on the County Judge/Executive's Office and/or the Animal Control Officer pursuant to KRS 61.872(6). The information/document(s) requested number in the several dozen, and more likely hundreds, and the request is so broad and non-specific that it is not possible to ascertain the exact nature of the information/document(s) requested.
Applicant is, in essence, requesting every document relating to Bullitt County's Animal Control program over the period of the prior one year and six months. Due to the sheer volume and the fact that the requested information/ document(s) may be in various locations and may not [be] maintained in the format requested, production of the records by a Judge/Executive's staff of three (3) and an Animal Control staff of two (2) would literally consume a number of entire days. This would prevent these offices from performing necessary duties for the residents and taxpayers of Bullitt County for a period of days, clearly constituting an unreasonable burden pursuant to KRS 61.872(6).
Finally, KRS 61.874 allows an applicant to request copies of written public records "upon inspection. " It would constitute an unreasonable burden to require the copying of the hundreds of requested documents prior to any inspection. Applicant may acquire public records from the official custodian as noted above, and upon inspection of said records, may then make a specific request of identifiable records over which the above respondents may have access and control.
The above objections/exemptions to the request for public records apply in general and specifically to each item (1-15) in the application. Again, the "official custodian" of public records for Bullitt County Fiscal Court, including the Offices of the County Judge/Executive and Animal Control, is the Bullitt County Clerk and proper application should be made to that office. However, this office would be happy to try and assist with any request should a specific application be made which would not present an unreasonable burden.
In a separate letter, dated April 25, 2002, Mr. Flaherty advised Ms. Fekete that the Bullitt County Fiscal Court and the Office of Bullitt County Judge/Executive were unable to comply with her request for a copy of the proposed budget for fiscal year 2002-2003 because, as of the date of his response, the budget had not been drafted. He further advised that the Fiscal Court would not consider the 2002-2003 budget until May 2002, and adoption of it would not occur until June 2002.
On April 30, 2002, Kathy Fekete initiated this appeal, asserting that she felt the request was specific enough and Bullitt County should comply with the request.
After receipt of the Notification of the appeal and Ms. Fekete's letter of appeal, Donna Ploetner, Deputy County Clerk, provided this office with a response to the issues raised in the appeal by providing copies of records that had been mailed on April 26, 2002 in response to the original request for information and records, dated April 19, 2002. In the April 26, 2002 cover letter, which accompanied the records, Ms. Ploetner advised:
Please find enclosed copies of the minutes of Bullitt County Fiscal Court meetings in which the Bullitt County animal shelter and/or the dog warden were mentioned. Upon going through the indexes of the Fiscal Court minutes, this is all the information I found for the time frame mentioned in your request. I also enclosed copies of minutes in which the current dog warden was appointed to that position.
Please remit a total of $ 3.50 to the address above to cover the cost of the copies (20@ 10 [cents] each) and $ 1.50 for postage.
Our review of the documents provided, showed that the County provided copies of General Fund -- Budget Appropriations from the 2000-2001 and the 2001-2002 budgets relating to animal control; County ordinances relating to animal control; and minutes of the Bullitt County Fiscal Court meeting from November 17, 1998 through April 2, 2002 in which matters relating to animal control were discussed.
By letter dated June 15, 2002, Ms. Fekete advised this office that the Bullitt County Clerk's Office had only partially complied with the original request. She stated she still needed copies of:
1. Records, including but not limited to cancelled checks, warrants or journal entries, and receipt books reflecting all payments to the Dog Warden, and Bullitt County Animal Shelter for services rendered since October 1, 2000 to present as listed in Item 2 of our original request.
2. Invoices, purchase orders and other requests for payment from any veterinary service provider submitted to the Dog Warden or the Fiscal Court of Bullitt County during the period of October 1, 2000 as listed in item 13 of original request.
3. All reports, summaries, descriptions, cancelled checks or other documentation related to the receipt and distribution of any Commonwealth of Kentucky monies received by Bullitt County for the purpose of improving the dog pound, its environs or for any purpose related to the animal care and control in Bullitt County. (item 14 of our initial request)
4. All documentation, summaries and descriptions regarding the training and/or qualifications of the dog warden and shelter assistants (item 10 of our original request)
5. Invoices, bills, requisitions, purchase orders, warrants or other documentation for property or supplies purchased or leased for the operation of Animal Shelter for the care of animals from October 1, 2000 to present. Items in this request include, but are not limited to, animal food, cage, vaccines, or any other material used to operate the Animal Shelter (item 11 in initial request)
By letter dated June 19, 2002, Nora McCauley, Bullitt County Clerk, advised Ms. Fekete that the County Clerk's Office had complied with Community Pet Relief Fund's open records request regarding the Animal Control. Addressing her June 15, 2002 letter and the five separate items of records listed therein, Ms. McCauley advised that the Bullitt County Treasurer was the proper custodian of those records. In her letter, Ms. McCauley concluded:
We have sent you the records, we have. Our office is open Monday - Friday, 8.00am to 4pm should you wish to check our Fiscal Court records. Our address is 149 N. Walnut St., Nina Mooney Courthouse Annex, 1st Floor, downtown Shepherdsville.
We are asked to determine whether the actions of the Offices of Bullitt County Fiscal Court Clerk; County Judge/Executive; and Animal Control Officer in response to the open records requests of Mr. Michael and Ms. Fekete violated the Open Records Act. For the reasons that follow, we conclude that actions of the public agencies were consistent in part and inconsistent in part with the requirements of the Act.
We address first the specificity and the nature of the initial requests. This office has previously criticized open-ended-any-and-all records-that-relate-type requests relating to a particular subject(s). 96-ORD-101; 99-ORD-14. In the latter decision, we recognized:
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.
In 99-ORD-63, this office analyzed the propriety of the Breathitt County Clerk's disposition of a vaguely worded open records request for "any and all" records relating to a particular subject. The county clerk declined this request, but agreed to permit the requester access to records in his custody by means of on-site inspection. We affirmed the county clerk's position, reasoning that the requester had not satisfied the requirements of KRS 61.872(3)(b), and was therefore not entitled to receive copies of public records through the mail. As noted at page two of that decision, KRS 61.872(3) establishes guidelines for records access by providing:
(3) A person may inspect the public records:
In construing this provision, we observed:
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 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.
97-ORD-46, p. 3. As in 99-ORD-63, Ms. Fekete resides in Louisville, Kentucky, which is outside the county in which the public records are located. She therefore satisfies the first requirement of KRS 61.872(3)(b). However, before Ms. Fekete can compel the Bullitt County public agencies to mail her copies of public records, she must "precisely describe[]" those records, and they must be "readily available within the public agency. " As we noted at pages three and four of 99-ORD-63:
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(3)(b), 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.
. . .
The third requirement (that the records be "readily available within the public agency" ) 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.
99-ORD-63, p. 3, 4.
Here, as in 99-ORD-63, Ms. Fekete failed to describe the records she wishes to access by receipt of copies through the mail in definite, specific, and unequivocal terms, and therefore fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, they cannot be characterized as records that are readily available with the offices of the Bullitt County public agencies. This being the case, the agencies may require her to conduct an on-site inspection of the records prior to furnishing her with copies of the records. Having extended an offer to Ms. Fekete to conduct an on-site inspection, the Bullitt County agencies fully discharged their duties under the Open Records Act. Accord, 99-ORD-210; 00-ORD-75; compare, 97-ORD-46; 98-ORD-103.
However, as noted above, the Bullitt County Clerk has provided Ms. Fekete with copies of General Fund -- Budget Appropriations from the 2000-2001 and the 2001-2002 budgets relating to animal control; County ordinances relating to animal control; and minutes of the Bullitt County Fiscal Court meetings from November 17, 1998 through April 2, 2002 in which matters relating to animal control were discussed.
As an alternative to conducting an on-site inspection, Ms. Fekete may wish to consider resubmitting an open records request to the agencies in which she describes the records sought in definite, specific, and unequivocal terms. Assuming all other conditions are met, the burden will then shift to the Bullitt County public agencies to furnish her with copies of the records by mail.
We address next the Clerk's response to Ms. Fekete's letter of June 15, 2002, in which she listed five items of records which had not been resolved. In its earlier responses, the Bullitt County public agencies stated that requests should be processed through the Bullitt County Fiscal Court's "official custodian, " which the agency indicates is the Bullitt County Clerk.
In her response to Ms. Fekete's June 15 letter, the County Clerk advised that the Bullitt County Treasurer is the proper custodian of these records. This response fails to explain why the request should go through the County Treasurer, rather than the Fiscal Court's "official custodian, " the County Clerk. It may have been because the requests dealt with items such as cancelled checks, invoices, purchase orders receipt books, i.e., financial records, with which the Treasurer would be familiar. If that was the case, an explanation should have been provided to Ms. Fekete.
The better approach, in our view, would have been for the "official Custodian" to confer with the Treasurer in formulating the proper response to the request and reroute the portion of the request to the appropriate department that maintained the requested records, rather than requiring her to submit a separate request for the records. 99-ORD- 157. Accordingly, either the official custodian of records or the appropriate department should timely respond to Ms. Fekete requests, rather than require her to submit another request. With this in mind, the Bullitt County agencies should work with Ms. Fekete, in the spirit of cooperation, to insure that her requests are promptly and properly handled.
Finally, the Bullitt County Fiscal Court and the Office of Bullitt County Judge/Executive denied the request for a copy of the budget for fiscal 2002-2003 on the basis that the budget had yet to be drafted at the time of the request. This office has consistently held that an agency's response that it does not have a requested record or it does not exist, satisfies the Open Records Act by affirmatively so stating. Accordingly, we find no violation of the Open Records Act in this regard. 01-ORD-125.
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.