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 responses of the Kenton County Airport Board to Christopher J. Mehling's requests of June 26, 2002 and July 9, 2002 violated the Open Records Act. For the reasons that follow, we conclude they did not violate the Act.
By letter dated June 26, 2002, Mr. Mehling made a request for copies of the following records:
Thank you for your letter of June 20 and enclosure. At page 3, paragraph 7A of the Taxi Cab License Agreement you will find that companies that participate in this agreement shall share the cost of a Board approved starter system. Could you please provide me with a copy of any minutes or other documents of the Kenton County Airport Board consistent with this provision of the agreement.
Responding to Mr. Mehling's request on behalf of the Board, Sheila R. Hammons, Secretary-Treasurer advised:
Unfortunately, your request is a blanket request for information on a subject that does not relate to reasonably identifiable documents and is therefore too broad and vague to be honored under the Open Records Act. The Attorney General has long recognized that blanket requests for information on a subject without specifying certain documents need not be honored: OAG 76-375; OAG 83-386; OAG 89-61; OAG 89-88; OAG 91-58; OAG 92-85. A public agency is not statutorily obligated to honor a request for information as opposed to a request for particular records. As a precondition to inspection, a requesting party must identify with reasonable particularity those documents which he wishes to review. See OAG 89-91.
In addition, to attempt to compile information in response to your general request would require enumerable man hours. Requests that place an unreasonable burden on a public agency need not be honored under KRS 61.872(6).
If there is a particular document you would like to review, please identify the same with reasonable particularity so that we may consider your request. If you have any questions, please do not hesitate to contact me at the address indicated above.
By letter dated July 9, 2002, Mr. Mehling, attempting to clarify his request of June 26 2002, submitted a follow-up request, stating:
I am following-up on my phone conversation with you of July 8th. As I indicated to you, my request was very specific. The taxi cab license agreement that each cab driver must sign to access the airport property provides for a starter system in paragraph 7, page 3. In that, subparagraph (a) provides specifically that there be "a Board approved starter system." It further provides "The Board, with approval of the company(s), shall determine the hours which the starters will be on duty." I am looking for those specific documents relating to the Board approval of the starter system, and the document under which the Board has approved the hours during which starters will be on duty. You indicated to me you were going to check with Dale Huber and that there may well be no such documents. If so, I would like to confirm that fact. I await to hear from you. Thank you.
Matthew C. Smith, attorney, responded to Mr. Mehling's July 9th request on behalf of the Board. In his response, Mr. Smith reiterated the Board's initial response that his response was being denied as a blanket request for information and because the request failed to identify with reasonable particularity the document desired. Mr. Smith further explained:
In addition, representatives of the Board have previously explained to you that the taxicab starter system has been in effect for over 30 years and there is no easy way to gather information in response to your request. To attempt to identify, locate and gather documents in response to your request would require at least several full days of staffs time which would place an unreasonable burden on the Airport Board in responding to your request. See KRS 61.872(6).
The Airport Board desires to be accommodating, however, it simply does not have the personnel or the resources to look for this information.
With that being said, it would generally appear that the first logical place to look for some of the documents you are requesting would be in the minutes of the Airport Board. Upon request, Sheila Hammons, could make arrangements for you or for someone from your office to be provided with a conference room to look through these minutes. I do not know whether you will or will not find the information you are requesting in the minutes. I am merely making this avenue available to you. On that note, please be advised that it has never been the Board's position that some of the documents [you] are requesting don't exist, instead, the Board has maintained that it would require an unreasonable amount of time to locate them. You are free to look through the minutes if you desire.
In his letter of appeal, Mr. Mehling asked this office to review the Board's responses to determine whether they were in violation of the Open Records Act.
After receipt of Notification of the appeal and a copy of Mr. Mehling's letter of appeal, Mr. Smith provided this office with a response to the issues raised in the appeal. In his response, Mr. Smith, in relevant part, indicated that representatives of the Board had explained to Mr. Mehling that the records he was requesting were not readily identifiable and that if they were, the Board would be pleased to provide them. Mr. Smith's response further explained:
The request at issue is for documents relating to Board approval of the Taxi Cab Starter System and hours of operation of the starter system. The Taxi Cab Starter System was instituted approximately thirty (30) years ago and remains in effect today. The Official Custodian of Records, Secretary and Treasurer of the Board, Sheila Hammons, has been employed with the Board for over sixteen (16) years. She has explained to Mr. Mehling that she has no personal knowledge of the documents Mr. Mehling is requesting and she has made an inquiry at the Airport and has been advised that some of these documents may exist, but to attempt to locate them would require a review of the minutes dating back to the inception of the Taxi Cab Starter System.
In my response of July 15, 2002, I indicated to Mr. Mehling that the Board would be pleased to provide either him or someone from his office with a conference room at the Airport in which to review these minutes. He has yet to take advantage of this opportunity. Mr. Mehling appears to desire the Airport conduct this research for him. While the Airport desires to provide Mr. Mehling with access to these records, it simply does not have the time or resources to conduct this research. This is a sensitive time in the aviation industry and the Board's responsibilities are widespread in providing safe and efficient travel for the air travelling public. The Board does not have the resources to dedicate personnel to spend several full days (or likely even more) researching this issue in the minutes. To attempt to conduct this research for Mr. Mehling would place an unreasonable burden on the Board. See KRS 61.872(6).
In addition, KRS 61.872(3) requires a requester of public records to precisely describe the public records which the requester desires which must be readily available within the public agency. Mr. Mehling only specifies the subject matter to which he wants documents to relate and requests the Board to identify and compile documents in response to his request. His request is for information, not for any particular document. Notwithstanding, the Board would provide him with any such documents if they were readily available.
?
Mr. Mehling's request is not for reasonably identifiable documents, but is essentially a blanket request for information, which would require the Board to spend days compiling information to conform to the parameters of his request. The Open Records Act does not require the Board to conduct extensive research for Mr. Mehling. Rather the law requires the Board to provide Mr. Mehling with reasonably identifiable documents. All minutes of the Board remain available for his review.
We are asked to determine whether the responses of the Board constituted a violation of the Open Records Act. For the reasons that follow, we conclude that the responses were proper and consistent with requirements of the Act and prior decisions of this office.
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. Mehling's mailing address indicates his principal place of business is in Kenton County, and the mailing address of the Board indicates the records are located in Cincinnati, Ohio, thus he appears to satisfy 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.
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. Although Mr. Mehling described the nature of the records he was seeking, i. e., documents relating to the Board approval of the starter system, and the document under which the Board has approved the hours during which starters will be on duty, he failed to describe the precise records he was seeking.
The Board argues that records as described in the requests are not readily available because they are not described with particularity and it would be required to search through thirty years of Board minutes to look for documents meeting the parameters of Mr. Mehling's request.
At pages 3-5 of 97-ORD-46, this office observed:
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.
. . .
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.
Mr. Mehling did not identify the records that he wanted copied in definite, specific, and unequivocal terms. Unless he can describe the records he seeks with precision, the Board is not obligated to search through its records for documents that may relate to his request.
In 99-ORD-210, this office held that where the requester did not, or could not, identify the minutes of specific meetings to which he desired access, he must expend his own time and energy in reviewing the agency meetings in order to locate and extract those which contain the information he was seeking.
Under these circumstances, the Board can properly require Mr. Mehling to come to its office to conduct his own search through the files for the records he seeks. As noted above, the Board has agreed to permit Mr. Mehling to review the Board's records to obtain the records he requests. Accordingly, we conclude that the responses of the Board did not constitute a violation of the Open Records Act.
Because the foregoing is dispositive of the instant appeal, we need not address the additional basis relied upon by the Board that producing copies of the requested records would constitute an unreasonable burden upon the agency, under KRS 61.872(6) .
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.
Christopher J. MehlingTaliaferro, Mehling, Shirooni, Carran & Keys, PLLCP.O. Box 468Covington, KY 41012-0468
Joe BakerZiegler & Schneider, PSC541 Buttermilk Pike, Suite 500Covington, KY 41017-5710
Matthew C. SmithZiegler & Schneider, PSC541 Buttermilk Pike, Suite 500Covington, KY 41017-5710
Sheila HammonsSecretary/TreasurerCincinnati/Northern KY International Airport P.O. Box 752000Cincinnati, OH 45275-2000