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 City of Shepherdsville violated the Open Records Act in the disposition of Sandy Clardy's February 14, 2003, request for "copies of all subpoena's [sic], with the information such as time in court, disposition, disposition of evidence, pay or no pay stamped on back, for Officer Brent Dawson to appear in court on behalf of the Commonwealth of Kentucky from Feb. 2000 to the present, Feb. 14, 2003." For the reasons that follow, we find that the city's response to Ms. Clardy's request was procedurally deficient but otherwise consistent with the requirements of the Act.
In a letter to six attorneys representing parties to litigation involving Ms. Clardy's relative, Gobel Newsome, and Officer Dawson, Shepherdsville City Attorney Norman R. Lemme advised that Mr. Newsome and Ms. Clardy had submitted identical open records requests for copies of the subject subpoenas. In light of the ongoing litigation, Mr. Lemme expressed the view that "the proper procedure was to proceed through the Federal Discovery. " He indicated that he had communicated this position to Mr. Newsome, and forwarded a copy of the letter to Ms. Clardy. This appeal followed.
In supplemental correspondence directed to this office, the six attorneys with whom he had previously corresponded, Ms. Clardy, and Mr. Newsome, following commencement of Ms. Clardy's appeal, Mr. Lemme agreed to provide copies of the records identified in Ms. Clardy's request under the following terms and conditions:
[T]he City has subpoenas of single sheets of paper totaling almost three (3) inches in height. Therefore, based upon a new ream of paper being slightly less than two (2) inches in height, we estimate there to be between 600 and 1,000 subpoenas. The requests covers [sic] both sides of the subpoenas or 1,200 to 2,000 total sides.
As was explained to counsel, almost all of the subpoenas contain the social security number and date of birth of each defendant. Prior to copying, the City will redact this information from each of the subpoenas. Further, some of the subpoenas are for juvenile court, involving juvenile matters which are of course confidential. The City will supply copies of these subpoenas with all information relating to the juvenile, the juvenile's parents, or others redacted, supplying only the subpoena showing the case number and the reverse side showing Officer Dawson's notations with regard to time in court, disposition of evidence and appearance and whether or not it is a pay or no pay appearance.
The charge for copying is ten cents (.10) per side. All those wishing copies should tender payment to the City in the amount of $ 120.00 in advance. Upon the completion of copying, any amounts due over the $ 120.00 based upon ten cents (.10) per side or any amounts to be refunded will be handled at the time of delivery.
Upon tender of payment the City will review the subpoenas, redact the above referenced information and make copies. This could take from three (3) to seven (7) business days from the date of the first tender of payment. Thereafter, any additional parties or individuals who wish copies should tender payment and, upon completion of the first set, additional copies should be done and ready for pick-up within one and one half (1() business days from the date of said tender.
In closing, Mr. Lemme indicated that "the City has not denied requests for copies" of records "appropriately released under the open records law," but wished to insure all interested parties, and their attorneys, equal access to those records.
On March 6, 2003, Mr. Lemme notified this office, the six attorneys with whom he had previously corresponded, Ms. Clardy, and Mr. Newsome that there had been "one tender of funds and 620 two sided documents and 20 one sided documents [had] been delivered." He elaborated on the rationale underlying the City's redactions, noting that social security numbers, dates of birth, and all references to juveniles were redacted pursuant to KRS 61.878(1)(a) and (1), the latter provision incorporating KRS 610.320. Mr. Lemme also referenced 18 USCA2721. He did not indicate whether it was Ms. Clardy, Mr. Newsome, or another individual who had tendered payment for copies of the records.
While it appears that the City ultimately recognized its statutory obligation to disclose nonexempt public records under the Open Records Act, notwithstanding the existence of ongoing litigation between Ms. Clardy's relative, Mr. Newsome, and Officer Dawson, we find that the City erred in failing to discharge its duty under KRS 61.880(1) upon receipt of Ms. Clardy's open records request. KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party in writing of its decision relative to disclosure and if that decision is to honor the request, providing the requester with the records identified in his or her request on or before the three day period of limitation has expired. These requirements, the Attorney General has often noted, "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. Discharge of these duties is required by law.
The City of Shepherdsville erred in failing to notify Ms. Clardy in writing, and within three business days, of its decision relative to her open records request. Although the City provided her with a copy of the letter mailed to the six attorneys representing the parties in the litigation between Mr. Newsome and Officer Dawson, this did not satisfy its obligation under KRS 61.880(1). The City's actions appear to have been prompted by an overabundance of caution, but its failure to directly communicate with Ms. Clardy in writing, and within three business days, constituted a violation of KRS 61.880(1) that was not mitigated by the presence of litigation.
This office has recognized, in a line of decisions dating back to 1982, that the presence of litigation does not suspend an agency's duties under the Open Records Act. For example, in OAG 82-169, this office observed:
Although there is litigation in the background of the open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
OAG 82-169, p. 2. Elaborating on this view, in a subsequent opinion the Attorney General observed:
The presence of litigation among the parties should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process.
OAG 89-53, p. 4. Shortly after OAG 89-53 was issued, we confirmed our position, asserting:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3; see also, 95-ORD-27; 97-ORD-98.
These open records decisions were accompanied by the following cautionary language:
We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
OAG 89-65, p. 3. Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds. Unless the requested records fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), they must be disclosed in a manner consistent with KRS 61.880(1). 1
The City has acknowledged Ms. Clardy's entitlement to the records, after redactions are made to protect information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of privacy, namely social security numbers and date of birth, and information shielded from disclosure by statutory enactment, namely personally identifiable information pertaining to juvenile offenders. The only condition the City has placed on disclosure is prepayment for copies. We find that the City's position is clearly supported by the Open Records Act.
KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." See also, KRS 61.874(1) ("When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate"); KRS 61.872(3)(b) ("If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing"). These statutes contain no provision for the waiver of such fees for any party. See 94-ORD-90 (no waiver of reproduction charges for media representative); 99-ORD-30 (no waiver of reproduction charges for inmates). "Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3; OAG 79-546; OAG 79-582; OAG 80-641; OAG 82-394; OAG 89-86; OAG 91-129; 92-ORD-1136. Accordingly, we find that it is entirely proper for the City of Shepherdsville to require prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, not including staff costs, and to enforce a standard policy relative to assessment of those charges. 2 See also, 98-ORD-95; 99-ORD-179. Ms. Clardy may obtain copies of the subpoenas upon prepayment of the copying charge which has now been fixed based on the figures contained in Mr. Lemme's March 6 letter. We affirm the City's ultimate disposition of her request.
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.
Distribution to:
Sandy Clardy283 Jonathan WayShepherdsville, KY 40165
Norman R. LemmeShepherdsville City AttorneyP.O. Box 400170 Frank E. Simon Ave.Shepherdsville, KY 40165
Tammy Owen, ClerkCity of ShepherdsvilleP.O. Box 400170 Frank E. Simon Ave.Shepherdsville, KY 40165
Footnotes
Footnotes
1 The only statutory exception to this rule is found at KRS 61.878(1), which precedes the twelve exemptions and which provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:
Although this statute prohibits a party to litigation from obtaining through the Open Records Act records which he or she could not obtain in pretrial discovery, it does not bar access to otherwise nonexempt public records by the party to litigation or a third party. See Department of Corrections v. Courier-Journal and Louisville Times Co., Ky.App., 914 S.W.2d 349 (1996).
2 In a footnote to 94-ORD-90, the Attorney General recognized that "a public agency may, of course, elect to waive the copying charge." 94-ORD-90, note 1. Citing OAG 81-300, we noted that "as long as full access is provided and the records are protected from damage and disorganization, there is no statutory prohibition against the agency waiving a fee . . . ." OAG 81-300, p. 2.