Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question raised in this appeal is whether the actions of the Office of the Mason County Attorney relative to the revised open records request of Joseph Charles Hill violated the Open Records Act. For the reasons that follow, we find the agency's actions did not constitute a violation of the Act.
On October 17, 2002, Mr. Hill submitted a revised open records request to the Office of the Mason County Attorney requesting to inspect and obtain copies of the following records:
1. Number of cell phones owned, leased, or rented that has been used to conduct Mason County Attorney concerns at anytime since Aug. 28th 2000.
2. Names of people who used the phones.
3. Copies of cell phone bills since August 28, 2000.
4. A statement of the purposes of the cell phones.
5. Copies of phone line records for # (606) 564-5585 since August 28, 2000 that is listed as contact phone numbers for Mason County Attorney Office of Kentucky.
6. Copies of phone line records for # (606) 564-6734 since August 28, 2000 that is listed as contact phone numbers for Mason County Attorney Office of Kentucky.
In his letter of appeal, dated November 15, 2002, Mr. Hill stated that the County Attorney's Office did not respond to this "Revised" request in any way.
After receipt of Notification of the appeal and a copy of the letter of appeal, John F. Estill, Mason County Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Estill explained that the Mason County Attorney's Office is not located within the Mason County Courthouse or other public structure, because no public space is allocated, but instead within the law offices of Fox, Wood, Wood, and Estill, a firm of which he is a partner. Addressing the issues raised in Mr. Hill's appeal, Mr. Estill advised in pertinent part:
%I was appointed by the Office of the Attorney General as Special Prosecutor in Case Number 00-M-00811 before the Greenup District Court. Mr. Hill was convicted of Criminal Trespass 2nd on March 2, 2001. My next contact was when I received the subject request seeking information concerning telephone records and bills pertaining to cellular telephones and other land line based phone systems utilized by the County Attorney's Office. By correspondence dated October 11, 2002 and attached hereto as an exhibit, I responded that the County Attorney's Office maintained no cellular phones nor other phone systems, as the phone numbers mentioned in the request were not paid for with public funds, and refused to provide the information requested.
The phone numbers referred to in the request (606) 564-5585 and (606) 564-6734, have been assigned to the private law firm of Fox, Wood, and Wood, and now Estill, for over 45 years, and well in advance of my election to the office of County Attorney. Such phone records reflect primarily private transactions, some of which are unquestionably privileged. Although the Fiscal Court of Mason County may pay some fee to have such phone lines listed as the contact point for the County Attorney, neither the Commonwealth of Kentucky nor the Mason County Attorney pay for such phone systems or phone bills. Accordingly, Mr. Hill's request was denied.
Several cell phones are used by on-call members of the Mason County Attorney's office, but none of which are paid from public funds. The cell phone that I carry may be listed with my carrier as John Estill, Mason County Attorney, but the bills and the phone are paid for by private funds.
Mr. Hill also indicates that I refused to respond to a revised request dated October 17, 2002, which is correct, as such request was never mailed to me at my office. I did receive the request at my home via a private and unpublished e-mail account, and to the best of my recollection it was identical to the first request. However, I deleted same and did not respond, and in fact found such request to be not only improperly served, but intrusive and harassing as well.
We are asked to determine whether the actions of the Office of the Mason County Attorney relative to Mr. Hill's request violated the Open Records Act. For the reasons that follow, we conclude that they were consistent with requirements of the Act.
We address first the Mason County Attorney's failure to respond to Mr. Hill's revised open records request. KRS 61.872(2) provides that an application to inspect public records "shall be hand delivered, mailed, or sent via facsimile to the public agency. " Mr. Hill's revised request was e-mailed to Mr. Estill at his home via a private and unpublished e-mail account. Since the request was not sent or delivered to the office of the public agency, but to Mr. Estill's private e-mail address, it was not delivered in accordance with the requirements of KRS 61.872(2) and, thus, the failure to respond did not constitute a violation of the Open Records Act.
We next address whether the County Attorney's denial of the requested phone records constitutes a violation of the Open Records Act. Mr. Estill has advised that the requested phone records pertain to primarily private business conducted by him and members of his law firm made on private phones and phone lines that are not paid for with public funds. This presents an issue of first impression.
This office has long recognized that records documenting the use of public equipment paid for with public funds are generally subject to public inspection. In 00-ORD-198, at pp. 2-3, this office stated:
This office has long recognized that records documenting the use of public equipment at public expense are generally subject to public inspection. For example, in OAG 86-21 this office held that telephone records of the Legislative Research Commission were subject to public inspection. In subsequent opinions, this holding was extended to records reflecting the names and facsimile numbers of all facsimile transmissions made for personal, and not agency purposes on agency equipment (96-ORD-238), a tape recording documenting a personal conversation of some duration between a Division of Fire and Emergency Services employee and another employee on a telephone extension dedicated to public use for 911 emergency calls (98-ORD-31), telephone records for calls originating from a telephone line used in a legislative leadership office (98-ORD-92), copies of pornographic material copied from an internet site by a school district employee (99-ORD-112), and personal computer files on a university owned computer (00-ORD-97). Common to each of these decisions is the recognition that public equipment purchased from public funds, and used by public employees on public time, is intended for purposes related to public service. The public's interest in disclosure of records documenting use of public equipment therefore generally prevails over any of the exceptions to public inspection codified at KRS 61.878(1)(a) through (1).
However, in the instant appeal, Mr. Estill has advised that the requested phone records pertain to private phones and phone lines that are not paid for with public funds. Although the private phone numbers are listed on public records as where the public may telephone the Mason County Attorney, the requested phone records are not in his possession as a result of his public office and the phone equipment is not paid for by public funds. They are phone and billing records he and his private law firm receive and pay as a result of the private contract with the phone company and Mr. Estill's personal cell phone contract, all of which Mr. Estill indicates are paid for with private funds.
The phone records relating to Mr. Estill's personal and business life and those relating to his private law firm would clearly not be "public records, " and would not be subject to disclosure under the Open Records Act. The same would apply to the cell phones used by on-call members of the Mason County Attorney's Office, that are also paid for with private funds.
However, the records of telephones whose numbers are listed on public registers as the contact numbers of the Office of the Mason County Attorney and presumably are the phones upon which the public agency conducts its public business, we believe would be of sufficient public character to constitute "public records, " even though the cost of the phones and their usage are paid for with private funds, to the extent that they record the operation and functioning of the public agency and, thus, would be subject to the Open Records Act.
In 00-ORD-198, at pages 3 and 4, we presented the following discussion concerning telephone billing records:
With specific reference to telephone billing records, we observed:
OAG 86-21, p. 3, 4.
Nevertheless, we also recognized in OAG 86-21 that there would undoubtedly be occasions "when there is a legitimate need by a public agency to keep telephone numbers it has called confidential." Continuing, we noted that "when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone number should not be released." Id. at 4. Under this line of reasoning, it is incumbent on the agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In denying access to the excepted material, the agency must provide particularized justification for the partial nondisclosure.
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.882(4). However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents that he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this condition.
In the instant case, Mr. Hill has requested copies of all phone records of Mr. Estill's private law firm and his private cell phone that would be commingled with calls related to the operation of the county attorney's office and the personal and private practice of Mr. Estill and that of other members of his law firm and staff for over a twenty-six month period. We think that because of the broad scope of this request and because the phones are paid for with private funds, the Office of the Mason County Attorney cannot be required to comb through over two years of phone records to determine the nature of each and every call. If the public agency maintains a phone log of public agency calls, then that record would be open to public disclosure, unless subject to nondisclosure under one or more of the applicable exceptions to disclosure under KRS 61.878(1). If no such log exists, we find the agency is not obligated to create a list or otherwise produce responsive records. 02-ORD-88.
Accordingly, we conclude the Office of the Mason County Attorney properly denied Mr. Hill's request for copies of cell phone bills and phone line bills covering a period of over two years period from phones which were paid for with private funds and which primary usage was Mr. Estill's private practice and that of his law firm and in which the operation of the private and public usage was commingled.
Finally, we note portions of Mr. Hill's open records request were framed as requests for information as opposed to records. For example, request number 1 was for the number of cell phones owned, leased, or rented that has been used to conduct Mason County Attorney concerns, request number 2 was for names of people who used the phones, and request number 4 was for a statement of the purposes of the cell phones. This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored under the Open Records Act. See, for example, OAG 90-100, in which we held that to the extent that the request asked questions, it was a request for information as distinguished from a request to inspect reasonably identified documents. The Open Records Act does not prohibit a public agency from voluntarily providing information in response to a request for same, it simply does not require the agency to do so. The Office of the Mason County Attorney 's decision not to honor Mr. Hill's request for information therefore does not constitute a violation of the Open Records Act.
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.
Distributed to:
Joseph Charles HillP.O. Box 81Argillite, KY 41121
Joseph Charles Hill7005 Concord DriveTampa, FL 33614
John F. EstillMason County Attorney24 West 3rd StreetMaysville, KY 41056