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 Sacramento violated the Open Records Act in the disposition of Larry Redfern's January 8 and January 9, 2003, open records requests, and whether the City subverted the intent of the Act, short of denial of inspection, in the imposition of conditions and restrictions on inspection and copying. For the reasons that follow, we find that some of Mr. Redfern's complaints do not relate to conduct arising under the Open Records Act and therefore cannot be deemed to constitute a violation of the Act. Moreover, we find, on the facts presented, that the facilities made available by the City for inspection of public records are not entirely unsuitable but believe that reasonable measures, as outlined below, should be taken to improve those facilities. However, we find that the record on appeal does support Mr. Redfern's complaint that the City violated KRS 61.880(1) in disposing of his requests, and subverted the intent of the Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 in imposing unauthorized conditions and restrictions on his right to inspect and copy public records. An analysis of Mr. Redfern's open records complaints, and the City's defenses thereto, follow.
Inadequacy of City's Responses to Open Records Requests
By letter dated January 8, 2003, Mr. Redfern requested copies of audiotapes and minutes of meetings conducted in the period between July 2002 and January 2003, "including the closed sessions concerning Floyd Ashby legation [sic];" records relating to "work done by Tim Slone on the old house . . . and the new gates installed on the battle gowns [sic];" and correspondence from and to "F.H.A. concerning the ordnance [sic] of water and sewer consolidation . . . ." By letter dated January 9, 2003, Mr. Redfern requested copies of audiotapes and minutes of meetings relating to various topics as well as past and present City personnel policies.
Sacramento City Clerk Delene Troutman responded to Mr. Redfern's January 8 request in a letter dated January 14, 2003. She advised him that "[d]ue to an extremely heavy workload," she was unable to produce the records requested on the date requested. Ms. Troutman explained:
I can have the tapes for the meetings that we have available, and that can be made public at this time, available for you to make copies of on this Friday, January 17, 2002 anytime from 12:00 p.m. to 4:00 p.m.
I can make records available to you on the rest of your request so that you may go through this to find the dates of material needed. When this has been done, I will make the necessary copies for you.
Although the record on appeal contains conflicting statements of fact, Mr. Redfern asserts that the Public Relations Commissioner orally denied him access to the tapes and that the city clerk orally advised him that he must bring his own duplication equipment to copy the tapes. Mr. Redfern received no response of any kind to his January 9, 2003, request. On appeal, he challenges the restrictions the City placed on his hours of access, the City's requirement that he duplicate the tapes himself, 2, the adequacy of the City's response to his January 8 request, and the City's failure to respond to his January 9 request.
In supplemental correspondence directed to this office following commencement of Mr. Redfern's appeal, Sacramento City Attorney Donna M. Dant responded to these allegations. She explained that on January 14, 2003, the City adopted an open records protocol governing access to City records and posted the protocol at City Hall. 3 Ms. Dant acknowledged that the City's action "for all practical matters is subsequent to the actions complained of by Mr. Redfern," but maintained that the City's responses to his earlier requests were otherwise sufficient. With reference to his January 8 request, Ms. Dant asserted that the response "is expressly set out in the correspondence to Mr. Redfern on January 14, 2003, wherein he was advised that the tapes were available to make copies on Friday, January 17, 2003, anytime from 12:00 p.m. to 4:00 p.m." 4 With reference to Mr. Redfern's January 9 request, Ms. Dant asserted that the request "was orally responded to by the City Clerk, specifically the personnel policies were made available to Mr. Redfern in a timely manner, however Mr. Redfern chose not to pick up these items." She explained that the Clerk orally notified Mr. Redfern that he must provide dates and times of the meeting tapes to which he desired access because "the Clerk is not required to do research for Mr. Redfern." We find that these responses did not conform to the requirements of KRS 61.880(1).
KRS 61.880 establishes 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 in writing, and within three business days of his request, by releasing the records identified in the request, or citing a statutory basis for denying access and explaining its application to the record withheld. 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.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, pp. 5, 6.
The City's response to Mr. Redfern's January 8 request was deficient insofar as it failed to address in any fashion his request for records relating to "work done by Tim Slone" and correspondence from and to "F.H.A." concerning the water and sewer consolidation ordinance. If the City maintains no records that are responsive to these requests, it is obligated to affirmatively so state. See, e.g., 02-ORD-163 (enclosed) (holding that "an agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms").
The City's response to Mr. Redfern's January 8 request was also deficient insofar as it failed to provide a detailed explanation for its inability to produce the records requested within three business days as required by KRS 61.872(5). "An extremely heavy workload" does not, in our view, constitute a legitimate basis for postponing a requester's right of access, or even minimally constitute a "detailed explanation." Moreover, although the City indicated that responsive records would be available for Mr. Redfern's inspection on January 17, the Clerk seemed to suggest that he must exercise his right of inspection on that date between the hours of 12:00 p.m. and 4:00 p.m. We believe that this represents an unreasonable restriction on Mr. Redfern's right of inspection in contravention of KRS 61.872(3)(a), recognizing that an individual has a right to inspect public records "during the regular office hours of the public agency" and OAG 80-641, recognizing that "any attempt by a public agency to limit the period of time within which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access. " See, e.g., 99-ORD-44 (enclosed) .
The City's oral response to Mr. Redfern's January 9 request did not satisfy the requirements of KRS 61.880(1), requiring a written response to an open records request, and therefore constituted a violation of that provision. Ms. Dant's description of the oral response suggests an additional deficiency, namely, the City's insistence that Mr. Redfern identify the tapes he wishes to access by meeting date as a precondition to affording him access, thereby equating nonobligation research with an obligatory search. 5 Unless the City can demonstrate that locating and retrieving the tapes and minutes that are responsive to his request would impose an unreasonable burden within the meaning of KRS 61.872(6), we believe it is incumbent on the City to afford Mr. Redfern access to and copies of the minutes by means of on-site inspection or receipt of copies through the mail. If the description Mr. Redfern provided is inadequate to enable the City to locate the requested minutes and audiotapes, we believe that he should at least be afforded an opportunity to conduct his own search through the minutes of the City's meetings to enable him to more specifically identify the minutes and audiotapes he wishes to obtain. See 00-ORD-235 (enclosed) .
In sum, we find that the City of Sacramento violated KRS 61.880(1) in the disposition of Mr. Redfern's January 8 and January 9 requests. We further find that the City subverted the intent of the Act, short of denial of inspection, by imposing unreasonable restrictions and conditions on Mr. Redfern's right of access. We urge the City to reevaluate its policies, to reformulate its open records protocol, and to adjust its copying fees to reflect no more than its actual cost, not including the cost of staff required. The City may not, under any conditions, require the public to absorb the cost of paying the City Clerk her hourly rate to make copies of public records during non-business hours.
Suitable Facilities for Inspection
In his letter of appeal, Mr. Redfern also complains that the City of Sacramento violated KRS 61.872(1) in failing to make suitable facilities available to the public for the exercise of the right of inspection. 6 Specifically, he maintains that the worktable provided is too small, the lobby within which it is located is unheated, 7 and his right of inspection disrupted by a steady flow of persons entering and leaving the lobby. In support, he furnished this office with photographs of the facilities provided by the City for exercise of the right of inspection and of an adjoining meeting room in which he was previously permitted to inspect records and which he believes to be more suitable. On behalf of the City, Ms. Dant responds that for reasons of security the meeting room and adjoining workstations are now locked. In addition, she notes that Mr. Redfern "was provided with a sturdy table, and . . . there was more than sufficient space . . . ." In contrast, Ms. Dant observes, the meeting room is more cluttered and the workspace only marginally larger. Ms. Dant did not respond to his allegation that the lobby is unheated.
Our review of the photographs Mr. Redfern submitted confirms both his and the City's position. Sacramento's City Hall is a small facility with limited space for all essential services. The meeting room contains a large table, but is cluttered with file cabinets and stacks of paper. The facilities provided for Mr. Redfern's right of inspection may not be entirely suitable, but they appear to be as suitable as existing space allows.
In a recent decision, the Office of the Attorney General reviewed existing authorities relating to the issue of suitable facilities. At page 6 of 02-ORD-094, we observed:
In 93-ORD-39, this office analyzed KRS 61.872(1), requiring public agencies to make suitable facilities available for exercise of the right of inspection, and KRS 61.876(1), requiring public agencies to adopt rules and regulations aimed at providing "full access to public records . . . ," and "assistance and information upon request . . . ." There we concluded that a city manager's abusive conduct toward a requester subverted the intent of the Open Records Act by creating an atmosphere so hostile that it precluded the requester from effectively inspecting the records. We observed:
93-ORD-39, p. 3. In 98-ORD-69, we took this analysis one step further and concluded that although "the requester cannot expect the agency to provide facilities which are large enough to accommodate an army of advisors and analysts, he may certainly expect that the facilities will comfortably accommodate the individuals working in concert or entirely independently." 98-ORD-39, p. 6. We concluded that "[a]s in all matters not specifically addressed by the Open Records Act, we apply a reasonableness standard." Id.
02-ORD-094, pp. 6, 7 (holding that speculation that requester would be harassed while conducting inspection on school board premises was insufficient to support claim of unsuitable facilities); see also 02-ORD-114.
Based on these authorities, we cannot affirm Mr. Redfern's assertion that the City failed to make suitable facilities available for the exercise of the right of inspection. Having said this, we nevertheless encourage the City to attempt to locate a larger but equally sturdy table on which the requester can more effectively view public records, to provide a heating unit during cold weather and a fan during hot weather (if the lobby is also not air-conditioned), to permit the requester to use the only bathroom available in City Hall upon request and, if absolutely necessary, under such restrictions as are necessary to insure security, and to encourage visitors to City Hall to conduct their business with as few disruptions to the requester as possible. In sum, we encourage the City to "work in a spirit of cooperation with [all] individuals wishing to inspect [its] records." 93-ORD-39, p. 3, cited in 02-ORD-094, p. 6, and to accord Mr Redfern the same courteous treatment it accords other open records requesters and all visitors to City Hall.
Non-Open Records Issues
Mr. Redfern raises several issues that are not appropriate for review under KRS 61.880(2)(a), directing the Attorney General to "review the [open records] request and denial and issue . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." These non-open records issues are enumerated below:
1. the Commission's failure to tape the January 2, 2003, special meeting;
2. the Commission's failure to discuss Mr. Redfern's January 9, 2003, open records request at a public meeting;
3. the Commission's failure to "authorize[] the City Attorney to change or amend the water and sewer [ordinance], . . . to draw up a resolution . . . to intervene in the pending lawsuit;
4. discussion by the Commission of general personnel matters in a closed session;
5. failure of the Commission to take official action to relocate the KRS 61.872(1) suitable facilities for inspection from the City Hall meeting room to the lobby;
6. the Commission's decision to rescind the policy of taping meetings; and
7. the Commission's closed session discussion of litigation, appointment of Ms. Dant as city attorney, and her actions relative to the Ashby litigation.
Because these issues do not arise under, or otherwise implicate, the provisions of the Open Records Act, we do not address them in our decision.
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.
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 The City subsequently clarified its position on this point, indicating that the clerk would make the copies for Mr. Redfern and others. As long as the fees imposed for making these copies do not exceed the City's actual costs, not including staff costs as discussed in greater depth at note 4 below, we find that the City's position is consistent with the Open Records Act and requires no additional analysis.
3 The City's open records protocol does not entirely conform to KRS 61.876(1). That statute provides:
Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
The protocol does not identify the City's principal office or regular office hours, or the title and address of the City's official custodian of records as defined at KRS 61.870(5), and does not describe the procedures to be followed in requesting the City's public records except to require the use of a form maintained by the Sacramento City clerk, a requirement that is, in itself, improper. See, e.g., 95-ORD-60 (holding that "a particular form may be desired and suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records"). In addition, the protocol establishes a copying fee of 254 per page. This fee has been declared unreasonable in numerous decisions of this office. See, e.g., 01-ORD-136 (enclosed) (holding that city clerk improperly assessed a 204 per page copying charge and was unable to substantiate that this charge reflected her actual cost within the meaning of KRS 61.874(3)).
4 Although she indicated that Mr. Redfern would only be charged $ 2.00 for each tape reproduced, based on representations previously made, Ms. Dant noted that the City has since decided to "contract with its City Clerk to make copies of tapes for the public upon demand, during the time she is not employed at the rate pay of $ 12.00 per hour, and the public will be required to reimburse the City for this cost to obtain copies of the tapes. " If by this Ms. Dant means to suggest that the public will be required to pay "the cost of staff required" for reproducing records during non-business hours, we find the proposed contract improper. Discharge of the duties imposed by KRS 61.870 et seq. is required by law and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3. If the Clerk is to act as the City's official custodian of records, she must accord her duties as such the same status as her other duties during regular business hours, including the duty to make copies at a cost not to exceed "the actual cost of reproduction, but not including the cost of staff required." KRS 61.874(3) (emphasis added). As noted at page 8 of 01-ORD-38, "This is not a courtesy extended to the public by [a public agency] , but a legal duty imposed on the [agency] and all public agencies. " We encourage the City to reconsider the proposed contract.
5 Mr. Redfern has not demanded that the City respond to a series of requests for information or posed a series of questions for which he demands narrative responses. Nor has he asked that the City compile information, other than information in existing public records, to conform to the parameters of a request. He has, instead, asked for audiotapes and minutes of meetings at which specifically described topics were discussed.
6 KRS 61.872(1) provides:
All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(Emphasis added.)
7 Mr. Redfern filed his appeal in early February. Although the temperatures have moderated since that time, a similar problem may arise during the summer months if the area designated for inspection is not air-conditioned.