Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
These matters, having been presented to the Attorney General in separate open records appeals but presenting identical questions of law, are consolidated for purposes of adjudication under KRS 61.880(4). It is the decision of this office that the City of Mt. Washington did not subvert the intent of the Open Records Act, short of denial of inspection, in the disposition of Thomas B. Givhan's July 24 and August 7, 2003 requests for records maintained by the City.
In his July 24 records application, Mr. Givhan "specifically request[ed] copies" of:
1. [A]ll executive orders, ordinance (s), contract(s) or record(s) which permit or require money to be paid to the City for water or sewer services and permit or require contractor or other rebates or refunds of any part of those funds.
2. The statement of accounts for contractor refunds or rebates of water meter or sewer connection fees from the time the practice began until July 20, 2003. The entity paying and the entity receiving refunds shall be listed with funds paid and funds rebated.
On August 7, Mr. Givhan "specifically request[ed] copies" of:
1. All documentation in the possession of the City of Mt. Washington which relates to any requested voluntary annexation from January 1, 1984 through today's date.
2. The ordinance creating each voluntary annexation from January 1, 1984 through today's date.
3. The Resolution or City Council Meeting Minutes denying each voluntary annexation from January 1, 1984 through today's date.
4. [T]he minutes of each City Council Meeting from January 1, 1984 through today's date.
In nearly identical responses issued on July 29 and August 8, 2003, Mt. Washington City Clerk Christi Franklin notified Mr. Givhan that pursuant to KRS 61.872(1) she would "make this information available for [him] to inspect at City Hall during the regular office hours of 8:00 a.m. to 5:00 p.m." Noting that although the number of open records requests recently submitted by Mr. Givhan, and the number of records implicated by those requests, might warrant invocation of KRS 61.872(6), 1 she concluded that she was "not denying [his] request[s], but allowing [him] to conduct [his] own onsite inspection of the requested records."
On appeal, Mr. Givhan challenges the City Clerk's refusal to mail him copies of the documents identified in his requests. He maintains that he "do[es] not intend to place an unreasonable burden on the City Clerk nor [does he] intend to disrupt other essential functions of the City as the Clerk seems to believe." Continuing, Mr. Givhan observes:
I am only requesting copies of documents I am entitled to receive under the Open Records Laws. I have no objection to a reasonable time being taken to copy the records. What is the problem with a clerk copying minutes.
It is his position that the Clerk has "overstep [ped] her powers."
In supplemental correspondence directed to this office following commencement of Mr. Givhan's appeal, Ms. Franklin elaborated on the City's position. She explained:
Mr. Givhan submitted three open records requests between July 1, 2003 and July 24, 2003. Attached are copies of his requests and my responses. The first response was extremely large consisting of 1,405 pages (approximately 1100 pages in redacted form) and 22 plat maps. I dedicated two weeks to this request, placing other City business on hold in an effort to complete this request in a timely manner. My current response under appeal to you would take approximately one month to compile the information because these records would need to be pieced together dating back to 1988. At this time, I cannot dedicate that much time to one project without placing other City business on hold.
I have no intention to deny Mr. Givhan access to any City records, but neither I nor my staff have the time to continue to compile large amounts of records without disrupting the functions of the City. Therefore, my response to Mr. Givhan stated that I will make the records available to him to conduct his own onsite inspection of the requested records.
This response was prepared three days before Mr. Givhan submitted his August 7 request for four broadly described categories of records dating back to January 1984. We find no error in the City Clerk's disposition of either of these requests.
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. 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.
In construing KRS 61.872(3)(a) and (b), the Attorney General has observed:
The statute . . . contemplates records access by one of two means: Onsite inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail . . . . [W]e believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records . . . . Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. [B]ut a requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency.
96-ORD-186, p. 3; see also 97-ORD-3; 99-ORD-63; 00-ORD-211; 01-ORD-225. Mr. Givhan's business letterhead, and a search conducted on Switchboard.com confirm that he resides and has his principal place of business in Bullitt County and can therefore be required to conduct an onsite inspection as a pre-condition to receipt of copies. 2 The statute recognizes no exception and we are not at liberty to read exceptions into the statute. Accord, 97-ORD-12 (holding that if an applicant resides or works in the county where the records are maintained, the agency is not required to honor a request for copies until the applicant has inspected the records). The Mt. Washington City Clerk's actions in this regard are entirely consistent with the requirements of the Open Records Act.
Assuming arguendo that Mr. Givhan resided or had his principal place of business outside Bullitt County, we believe the City Clerk's actions would still comport with the requirements of the Act. KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records he wishes to access by onsite inspection, KRS 61.872(3)(b) requires the requester to precisely describe[]" the records which he wishes to access by mail, and provides that those records must be readily available within the agency. In 97-ORD-46, this office determined that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail. See also, 01-ORD-225. With reference to the third requirement found in KRS 61.872(3)(b), this office has observed:
The third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2) ; KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
97-ORD-46, p. 5 (emphasis added). We did, however, note in 97-ORD-46 that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." 97-ORD-46, p. 5.
It is the opinion of this office that Mr. Givhan did not precisely describe the records to which he requested access by receipt of copies through the mail and that the City Clerk has demonstrated the difficulties associated with identifying, locating, and retrieving the requested records. Accordingly, we find that the Clerk's response was consistent with KRS 61.872(3)(b) under either factual scenario, to wit in-county or out-of-county residence and/or principal place of business.
Early opinions of this office encouraged public agencies to "accommodate requesters whenever they can within the bounds of efficient operation of their office." OAG 83-204, p. 4. "To require the requester to appear in person at the office of the agency" when his request is narrowly framed and the records can be easily access, "would not be more convenient to either party and would only inhibit the intended purposes of the Open Records Act. " Id. While we continue to ascribe to this view, we do not believe that the Mt. Washington City Clerk has "overstep [ped] her powers" under the circumstances of this appeal and conclude that she properly extended an invitation to Mr. Givhan to conduct an onsite inspection of the records broadly identified in his request. Where a requester cannot identify the records he desires with precision, or wishes to extract information that has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency . . . ." OAG 76-375, p. 3. Having afforded Mr. Givhan the opportunity to do so, and in the absence of any evidence of bad faith on the part of the City Clerk, we find that the Mt. Washington City Clerk properly discharged her duties under KRS 61.872, et seq., and KRS 83A.085(3)(b) (requiring city clerks in cities other than cities of the first class to perform the duties of records custodian pursuant to KRS 61.870 to 61.882).
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.
Thomas B. GivhanGivhan & Spainhour, P.S.C.Professional Building, Suite One200 South Buckman StreetShepherdsville, KY 40165-0065
Christi Franklin, Clerk City of Mt. WashingtonP.O. Box 385275 Snapp StreetMt. Washington, KY
Rodney Burress, AttorneyCity of Mt. Washington161 East Second StreetShepherdsville, KY 40165
Footnotes
Footnotes
1 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 Before 1992, the Attorney General consistently held that the right to copies was ancillary to the right of inspection. OAG 76-375; OAG 82-629; OAG 83-42; OAG 88-44; OAG 89-76. Since 1992, the agency's ability to require inspection prior to furnishing copies is not recognized if the requester resides and has his principal place of business outside the county where the records are maintained and he precisely describes the public records which are readily available within the agency. These conditions are not satisfied in the instant appeal.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -