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 actions of the City of Fort Mitchell relative to the open records request of John Ellenbogen constituted a violation of the Open Records Act. For the reasons that follow, we conclude that the actions of the City were consistent in part and inconsistent in part with the requirements of the Act.
On June 16, 2003, Mr. Ellenbogen faxed a written request to the Custodian of Records of the City asking to inspect "the original documents regarding the Board of Ethics of the City of Fort Mitchell, Kentucky from the time first efforts began to establish it, up to the present date, as laid out below." Specifically, he asked to inspect the following:
1. All documents in context with
a) the efforts to establish it, and
b) in regard to the establishment, and
c) in regard to the maintenance of
the Board of Ethics of the City of Fort Mitchell, Kentucky including notes, correspondence, reports, business papers, recordings, minutes of meetings, ordinances, certificates, receipts, incoming and outgoing amounts of money, and any and all other documents in this context.
2. All documents in regard to the staffing of the Board of Ethics of the City of Fort Mitchell, Kentucky with Members and other personnel, including documents of appointment, resignation, removal, reappointment of Members of the Board of Ethics of the City of Fort Mitchell, Kentucky from the first efforts to find Members to the present Members.
3. All documents in context with all official and unofficial activities of the Board of Ethics of the City of Fort Mitchell, Kentucky since its founding to the present date including notes, agendas, business papers, reports, recordings, minutes of meetings, procedures, rules, decisions, recommendations, correspondence, and any and all other documents in this context.
4. All documents in context with the implementation and enforcement of any and all decisions of the Board of Ethics of the City of Fort Mitchell, Kentucky since its establishment to this date.
Please let me know the earliest date and time, when I may come to inspect the original documents regarding the foregoing requests. You may reach me best by U.S. mail, or you may send me a fax to save taxpayers' money for postage to Fax No. [omitted here]. Thank you.
On June 19, 2003, Linda Coburn, City Clerk, by fax, responded to Mr. Ellenbogen's request to inspect the above-described records, advising:
If you will call me, we can make an appointment for you to look at the records you have requested in your fax dated 6-16-03 @ 9:56 a.m.
In his letter of appeal, Mr. Ellenbogen asserted that the City's response and subsequent actions violated the Open Records Act. In his letter, he argues:
a) I did not receive a written reply within three days from the City as required by law. City Clerk Linda Coburn only faxed for me to call for an appointment. After I called, I went to the City Administration Building to inspect the records.
b) Linda Coburn put a number of records in front of me on a table in the Council Chamber. She supervised my inspection of the documents by personally watching me read the documents in the Council Chamber, and had Police Chief Steve Hensley make what I perceived as an intimidating if not threatening visit for no good reason while I was there. Every time I wrote a note for myself, she made notes on her pad of the particular document I was inspecting.
c) When I asked to inspect a specific document she had not put in front of me, she refused verbally and told me to speak to the City Attorney.
d) When I selected six documents of which I wanted a photocopy, she took all the documents away and after a short while wanted me to sign a form. I did not agree with the contents on the form and declined to sign it, but pulled out my walle[t] and offered to pay the 60 cents she demanded. She refused to take the money, told me to talk to the attorney, walked out of the Council Chamber, and did not give me the requested six photocopies. Subsequently, I offered to pay the 60 cents to the Clerk at the front window. She just shrugged her shoulders.
e) The above shows total disregard by Linda Coburn, the Fort Mitchell City Clerk, for Kentucky's Open Records Act. She failed to reply to my Open Records Request as legislated, initiated intimidation during inspection, and refused to give me photocopies of public documents. Coburn put herself above the law.
(Emphasis in the original.)
After receipt of notification of the appeal and a copy of Mr. Ellenbogen's letter of appeal, Ms. Coburn provided this office with a response to the issues raised in the appeal. In her response, she advised:
Mr. Ellenbogen's Open Records Request to inspect some records was FAXED to me June 16, 2003 at 9:45 a.m. A written reply was FAXED to Mr. Ellenbogen at 8:00 a.m., June 19, 2003. I am attaching the response to him along with our FAX transmission report showing that it was sent successfully. I noticed that Mr. Ellenbogen did not attach it to his appeal pursuant to KRS 61.880.
Mr. Ellenbogen called my office at 4:25 p.m. on June 19, 2003. I informed my receptionist that I was in a meeting and would be unable to call him before the office closed at 4:30 p.m. and to please advise him to call me first thing the next day and I would be glad to set up an appointment at our convenience. He told my receptionist that he would arrive at 8:00 a.m. to inspect the records and hung up.
He arrived at approximately 8:15 a.m. on June 20, 2003. After inspecting the records he selected six pages for reproduction. I filled out a "Record Request" form stating the records he desired, the charge of $ .60 and asked him to sign it; he refused by questioning whether or not the records stated were those requested. Since we require the form to be signed and dated, I refused to give him the copies he requested even though he offered payment. After he left I returned to pick up the form and it was not on the table where he had been seated. I am assuming he had taken it with him so I do not have it.
We are asked to determine whether the actions of the City relative to the open records request of Mr. Ellenbogen violated the Open Records Act. For the reasons that follow, we conclude the agency's actions were consistent in part and inconsistent in part with the Act.
We address first the issue as to whether the City timely responded to Mr. Ellenbogen's request in writing.
KRS 61.880(1) in relevant part provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
Mr. Ellenbogen faxed his request to the City on June 16, 2003. On June 19, 2003, Linda Coburn, City Clerk, faxed a written response to his request, advising him that he could inspect the records he requested to review and for him to call to make an appointment to do so. Under these facts, we conclude that the City timely responded in writing, within the three day period required by KRS 61.880(1), notifying Mr. Ellenbogen of its decision that it would comply with his request. We find no violation of the Open Records Act on this issue.
We next address the issue as to whether the City could require Mr. Ellenbogen to set up an appointment as to when he could inspect the records.
KRS 61.872(3)(a) mandates public access to agency records "during the regular office hours of the public agency. " In construing this provision, the Attorney General has consistently recognized 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. OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39; 96-ORD-54; 98-ORD-69. In the latter decision, we expressly held that an agency:
cannot restrict the hours of access to public records in the course of the business day, cannot condition exercise of the right to inspect those records on the availability of an employee or employees to oversee inspection, and cannot avoid [its] statutory duty based on the requester's identity or purpose, or the need "to minimize the commitment of time and burden on the public agency. "
98-ORD-69, p. 6. The only recognized exception to this general rule comes into play when the agency has a very small complement of employees or restricted and irregular office hours. See, e.g., 96-ORD-54, at p. 5 Under these circumstances, "the Open Records Act contemplates that the public agency and the requester mutually agree to a time and place convenient to both for review of the public records. "
In 02-ORD-094, we held that the requester was entitled to immediately inspect the requested records during the public agency's regular office hours once the agency notified her in writing that the records were available for review. In reaching that conclusion, we stated:
In the interest of absolute clarity, we reiterate that she cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the school system.
02-ORD-094. p. 5. (footnote omitted.)
The record before us does not support Mr. Ellenbogen's position that he was required to make an appointment to inspect the records. The City's response to this office stated that Mr. Ellenbogen called the City Clerk's office at 4:25 p.m. on June 19, 2003 and advised them that he would arrive at 8:00 a.m. the next day to inspect the records and that he showed up at 8:15 a.m. the following day and was permitted to inspect the records. Thus, we conclude that the City made the records available for inspection during the agency's regular business hours, in compliance with KRS 61.872(3)(a). Of course, a public agency and the requester may mutually agree to a time and place convenient to both for review of the public records. 96-ORD-54.
Next we address the issue involving the conditions of inspection. Mr. Ellenbogen argues the fact that the City Clerk watched him inspect the records and took notes and that the Police Chief made an intimidating and threatening visit while he was inspecting the records. In 02-ORD-094, the Attorney General examined a public agency's duty under KRS 61.872(1) to provide suitable facilities for the exercise of the right of inspection. At pages five through seven of that decision, we stated:
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.
Nevertheless, this office has approved the practice of assigning an employee to oversee inspection of public records as long as the agency does not condition exercise of the right of inspection on the availability of the employee. 93-ORD-48; 99-ORD-44. In 93-ORD-48, we observed:
93-ORD-48, p. 2.
Mr. Ellenbogen asserts that he was subjected to an intimidating environment during his inspection. We do not have sufficient information before us to decide this issue. Neither the mere presence of the City Clerk and her taking notes nor the visit of the Chief of Police establish, without more information, that the City failed to provide suitable facilities and conditions for inspection. However, as noted by the authorities cited above, the City and all public agencies must work in a spirit of cooperation with individuals seeking to inspect public records to create an environment conducive to effective inspection and free of harassment. 93-ORD-39.
Next, we address the issue of the City's requirement that Mr. Ellenbogen sign its official form prior to receipt of the requested copies of records. The fact that he did not or refused to sign the City's form cannot be a valid basis for denying him access to the requested copies.
In 94-ORD-101, this office held:
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.
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). 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:
94-ORD-101, p. 2, 3. If the City refused to provide Mr. Ellenbogen copies of the requested records because he did not sign the agency's official request form, its actions were contrary to the requirements of the Open Records Act. If Mr. Ellenbogen's June 16, 2003 request that he faxed to the City contained his signature and his name was printed legibly and described the records to be inspected, that would have met the minimum requirements for inspection. KRS 61.872(2). Moreover, there is no requirement in the Act that requires a requester to acknowledge receipt of the copies he receives prior to receiving the copies. Accordingly, the City should provide Mr. Ellenbogen with copies of these requested records. The City may require prepayment of the copying fees prior to proving the records.
Finally, Mr. Ellenbogen, in his reply to the City's response provided this office, contends that the City did not provide all the records he requested and withheld others from his inspection. The City indicated that Mr. Ellenbogen had been provided records consistent with his request. Regarding disagreements of this nature between a requester and a public agency, this office in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records Mr. Smith asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Documentation presented by both parties indicate certain tension between the City and Mr. Ellenbogen. Many of the open records issues appear capable of resolution by cooperation between the parties. Accordingly, the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to the records sought.
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 proceedings.
Distributed to:
John Ellenbogen 36 Superior AvenueFort Mitchell, KY 41017
Linda Coburn, ClerkCity of Fort MitchellP.O. Box 17157Fort Mitchell, KY 41017
Rob Ziegler, AttorneyCity of Fort MitchellP.O. Box 175710Fort Mitchell, KY 41017