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 Louisville Metro Inspections, Permits, and Licenses ("IPL") violated, or otherwise subverted the intent of, the Open Records Act in the use of a preprinted records inspection request form. For the reasons that follow, we find that the preprinted form developed by IPL "creates a potential chilling effect on submission of open records requests . . . that is inconsistent with the basic policy of the Open Records Act codified at KRS 61.871," and that its use constitutes a subversion of the intent of the Act. 02-ORD-89, p. 9. In addition, we find that IPL's failure to respond to complainant Doug Spillman's March 7, 2003 request, which was not submitted on the preprinted form, until Mr. Spillman contacted IPL by telephone on March 21, 2003, constituted a violation of the Act.
In his letter of appeal, Mr. Spillman states that on March 6, 2003, he called IPL and spoke with an employee named Teresa Fletcher who advised him that in order to make an open records request, he was required to "complete a form and submit it to her . . . ." He explains that Ms. Fletcher faxed him a copy of the form, but he elected instead to submit his request by letter dated March 7. Mr. Spillman provided this office with a copy of his letter. In it he requested "all information and documents of any kind relating to any complaints and/or violations pertaining to the property located at 1112 Springview Dr., Louisville, KY for the past two years . . . and any information and documents relating to complaints and/or violations for any property on Springview Dr., Louisville, KY for the last 18 months." Our review of the letter confirms that Mr. Spillman signed his request and that his name was printed legibly on it.
Having received no response to his open records request, Mr. Spillman indicates that he contacted Ms. Fletcher on March 21, 2003 to inquire into the request's status. He states that Ms. Fletcher advised him that because he provided his address but no telephone number, she was unable to contact him in order to respond. Although he received no written response to his request, Mr. Spillman acknowledges that he ultimately obtained the records by sending an emissary to IPL's office to retrieve them. He expresses the belief that had he not contacted Ms. Fletcher by telephone he would have received no response and attributes IPL's inaction to his failure to use the agency's form. On appeal, he questions the propriety of IPL's use of the preprinted records inspection request form. 1
In supplemental correspondence directed to this office following commencement of Mr. Spillman's appeal, Assistant Jefferson County Attorney Winston E. King defended IPL's use of the preprinted request form. He explained:
The use of a form by the public agency is not a violation of the Open Records statutes, so long as the failure to use the form is not a basis for denial of the request. [99-ORD-46 and 94-ORD-101.] While IPL utilizes a form for open records requests, it has not, to anyone's knowledge, denied a request for failure to use the form. Requests have been granted in the past where the request has been by letter, facsimile, and even e-mail. It should be noted that Mr. Spillman's request was granted although he did not fill out the form, but made his request in letter form.
While the form requests the information Mr. Spillman refers to, again, no one can recall a request being denied for failure to complete all parts of the form. The form and the information requested are used by IPL to provide consistency in its application of the Open Records statutes. I can find no authority that precludes IPL from asking for information other than the requestor's signature, printed name and description of the records requested, so long as the failure to provide that additional information is not a basis to deny the request. Asking for the requestor's telephone number and address makes it easy for IPL to respond to requests in a timely fashion.
In closing, Mr. King conceded that IPL committed a procedural violation of the Open Records Act, but asserted that "the use of a form and requesting more information from the requester than required by statute is not a violation of the Open Records statutes when failure to use the form or provide the additional information is not used as a basis to deny the request." Respectfully, we disagree.
Shortly after the 1994 amendments to the Open Records Act took effect, this office issued a decision in which we held that "[a] public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)." 94-ORD-101, p. 2. That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
At page 2 of 94-ORD-101, the Attorney General recognized:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
Id. This position echoed an early open records opinion in which the Attorney General stated that "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 95-ORD-60 and 95-ORD-33. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information.
The only exception to this rule is found at KRS 61.874(4)(b), permitting public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a). In 02-ORD-89, the Attorney General was asked to review a preprinted form used by a property valuation administrator that included a section in which the requester was asked to explain his specific purpose and sign a "Non-Commercial Applicant's Certified Statement." We determined that the request form "demanded more than is required by KRS 61.872(2)," thereby subverting the intent of the Open Records Act, and concluded that the form "creates a potential chilling effect on submission of open records requests to PVAs that is inconsistent with the basic policy of the . . . Act codified at KRS 61.871." 02-ORD-89, p. 9. We expressed the view that the PVA's form should be modified by requiring the applicant to explain his purpose only if he checks off "Commercial," as opposed to "Non-Commercial" in the "Anticipated Use of the Information" section, and by deleting the "Non-Commercial Applicant's Certified Statement," for which no legal authority exists, in its entirety.
By the same token, no authority exists for inclusion of those sections of the IPL request form requiring the requester to indicate whether he is a representative of the news media or the reasons for his request. 2 We can see no reason why this information is needed "to provide consistency in [IPL's] application of the Open Records statutes," 3 and believe the form should be modified by deletion of these sections. In addition, no authority exists for requiring an applicant to verify his identity by producing a driver's license or other form of identification, and we believe this requirement should be deleted. 95-ORD-33 (applicant cannot be required to state his purpose or produce an I.D. in order to review an agency's records). The remaining sections of the IPL form, with the exception of the sections discussed in note 1, are clearly authorized by KRS 61.872(2), and may be included in the form that is "desired or suggested" by IPL. 94-ORD-101, p. 2.
At page 3 of 94-ORD-101, the Attorney General observed:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
Continuing, this office noted that the agency "violated the Open Records law when it ignored the application or request to inspect public records because it was not submitted on a particular form devised by the public agency, " and that the agency "was under a legal obligation to respond to the request within the statutorily mandated time frame . . . ." Id. at 3, 4.
Although IPL maintains that it does not require applicants to use its request form, and that it has never denied a request on the basis of the applicant's refusal to use the form or provide the additional information requested, the unrefuted facts in this appeal indicate that Mr. Spillman's request was ignored for nearly two weeks. It is unclear whether it was ignored because he failed to provide his telephone number, an item of information that KRS 61.872(2) does not require him to give, or because he failed to use the IPL records inspection request form. In either case, we find that IPL's inaction constituted a violation of KRS 61.880(1). Ms. Fletcher's oral response to Mr. Spillman's telephone inquiry did not satisfy the requirements of that provision. He never received a written response from IPL. We urge IPL to review KRS 61.880(1) to insure strict compliance with 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.
Doug Spillman1112 Springview DriveLouisville, KY 40219
Teresa FletcherDepartment of Inspections, Permits and Licenses 617 West Jefferson StreetLouisville, KY 40202
Irv Maze521 Court Place, Suite 1001Louisville, Kentucky 40202
Footnotes
Footnotes
1 The content of IPL's form is set forth below:
Case Requested For Review:
Identification Of Person/Party Requesting Review:
Name(s):
Address:
Phone: ( )
Is Person Requesting The Review A Representative Of The News Media?
[]NO[] YESRepresentative For:
Reason(s) For Request:
Document(s) Requested For Review:
Signature: Date:
Verified By: [] Driver's License [] Other Identification:
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2 Although no statutory authority exists for requiring the applicant to provide his address, telephone number, or the date, this information is also requested in form B-010-1, "Request to Inspect Public Records, " approved by the Finance and Administration Cabinet, and serves to facilitate communication between the parties as well as a timely agency response. While a request should not be denied simply because the applicant refuses to furnish this information, we find that the inclusion of these sections does not constitute a subversion of the intent of the Act. However, IPL offers no explanation for that portion of the form on which the applicant is asked to identify the "Case Requested for Review." Unless this information is integral to IPL's ability to locate and retrieve the records otherwise identified in the request, we believe that it too should be deleted.
3 IPL points to no provision of the Kentucky Revised Statutes according the media access to IPL records which the general public may not access. Compare KRS 189.635(6) (named parties and news gathering organizations may obtain copies of accident reports, but reports are otherwise confidential). This section is therefore gratuitous.
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