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 Windy Hills violated the Open Records Act in denying Lynn S. Renau's July 22, 2003 request for copies of "all documentation pertaining to the survey regarding sidewalks conducted at [Mayor Louis Phillips'] request by Councilman Michael Skelton, the results of which were published in the Summer 2003 Windy Hills newsletter." For the reasons that follow, we find that the City's response to Ms. Renau's request was nonresponsive and remand this matter to the City for immediate action consistent with the analysis that follows.
In her July 22 request, Ms. Renau specifically identified four categories of information or records she wished to access by receipt of copies consisting of:
1. the names of all the members of the sidewalk committee;
2. the sheets listing the names of homeowners on Rudy Lane each member of the committee called;
3. the "fact" sheet identical to the one committee member Jim Ising had at the July 14, 2003 city council meeting;
4. the letter Mike Skelton stated he sent to every homeowner who could not be reached by telephone.
In a response dated July 24, 2003, Mayor Phillips denied Ms. Renau's request, advising her:
1. KRS 61.878(L) states preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
2. KRS 61.878(J) states preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
3. See also OAG 88-32. A public agency properly excludes from public inspection those documents consisting of preliminary material which sets forth opinions and observations of board members and which do not represent the agency's final decision.
4. OAG 90-13. A city acts consistently with the Open Records Act in denying inspection of voluntary survey forms returned to its economic development office on the grounds that they constitute correspondence with private individuals.
5. OAG 79-69. Response to a voluntary survey is private correspondence and is exempt from public inspection under the open records law.
In addition, Mayor Phillips denied Ms. Renau's request because the records sought "are not properly 'city records' but are the private notes of one councilman. " On August 5, 2003, Ms. Renau initiated this appeal asserting that the survey results were published in the Summer 2003 newsletter and "all components of that survey are now public information."
In supplemental correspondence directed to this office following commencement of Ms. Renau's appeal, Windy Hills City Attorney Foster L. Haunz amplified on the City's position. He explained:
One city councilman, Michael Skelton, selected several residents to assist him in contacting owners along a proposed sidewalk route to see what their interests would be in the sidewalk. Councilman Skelton may have some personal notes on his activities not a part of city records. It is his personal notes and letters he may have directed to individuals along the proposed path that Ms. Renau seeks. These are not in the possession of the City and have never been. The investigation of the sidewalk project is ongoing, with a decision not expected for at least 60 days during which the City is seeking opinions on plans, costs, feasibility, and the like.
In closing, Mr. Haunz noted that Ms. Renau requested copies of records rather than the right to inspect records notwithstanding the fact that "she is a resident of the city and county wherein the request is sought." We find that the City's response to Ms. Renau's request was both procedurally and substantively deficient.
With reference to the procedural deficiencies, we find that the City erred in implementing the mandate of KRS 61.880(1). That statute 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although the City issued a timely written response that included a statement of the exceptions arguably authorizing the withholding of the requested records, that response was deficient to the extent that it did not include "a brief explanation of how the exception[s] applie[d] to the record[s] withheld." In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Moreover, this office has repeatedly opined that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." See, e.g., 93-ORD-125, p. 5; 00-ORD-230, p. 2. The City's response references KRS 61.878(1)(i), erroneously identified as KRS 61.878(L), and KRS 61.878(1)(j), and recites the language of these exceptions. Additionally, the response references three prior opinions of this office, involving predecisional documents and written responses to voluntary surveys, 1 without explaining how those opinions apply to records containing sidewalk committee members' names, names of homeowners on Rudy Lane who were called by the committee, the "'fact' sheet" which "Jim Ising had at the July 14, 2003 city council meeting," or "the letter Mike Skelton stated he sent to every homeowner who could not be reached by telephone. " It is because of this omission, and the attendant difficulties associated with determining the propriety of the City's denial of Ms. Renau's request, that we remand this appeal for further action consistent with the principles set forth below.
To begin, we reject the City's argument that because Councilman Skelton did not elect to turn the written materials related to the "survey" over to the City, those records are not public records within the meaning of KRS 61.870(2). That statute defines the term "public record" as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
The term "public agency" is, in turn, defined as "[e]very state or local government officer[.]" KRS 61.870(1)(a). As a councilman for the City of Windy Hills, Mr. Skelton is a local government officer. Records generated and maintained by or for him in the discharge of his public function are public records for purposes of the Open Records Act, notwithstanding the fact that they remain in his custody and control. Such records are subject to inspection upon request unless otherwise exempt.
The record on appeal neither confirms nor contradicts the existence of records responsive to Ms. Renau's request. If, for example, Councilman Skelton generated a list containing the names of individuals who assisted him in conducting his "survey," and/or a list containing the names of homeowners on Rudy Lane who were contacted, the City is obligated to confirm the existence of the records and to articulate a basis for denial in terms of the requirements of the exemption(s) upon which it relies. Such lists are not analogous to the written survey forms that were the subject of this office's opinions in OAGs 79-69 and 90-13 insofar as a list of names cannot properly be characterized as correspondence with private individuals. Nor can they be characterized as predecisional documents in which recommendations are made, opinions expressed, or policies formulated insofar as a list of names contains neither recommendations, opinions, nor policies. Unless the City can advance an alternative legal basis for denying Ms. Renau access to these records, 2 the City must produce the records for her inspection.
Similarly, the record on appeal neither confirms nor contradicts the existence of the "fact sheet" from the July 14 council meeting or the letter Councilman Skelton mailed each homeowner who could not be reached by telephone. Nor does the City provide particular and detailed information relative to its denial of Ms. Renau's request for these records. As noted above, the fact that these records may not be in the City's custody does not alter their character as public records subject to inspection upon request unless otherwise exempt. It is, therefore, incumbent on the City to determine if the records exist and to afford Ms. Renau access to them unless it can advance a legally supportable basis for denying her request. We reject the argument that a letter prepared by a public official, relating to a matter of public interest, and directed to members of the public whose interests are implicated, or a fact sheet disseminated to some members of the public attending a city council meeting, are shielded from disclosure as the official's "personal notes and letters."
If in the course of conducting his survey, Councilman Skelton generated written drafts and/or notes, or submitted written memoranda to the council in which he made recommendations, expressed opinions, or formulated policy, those records enjoy protection under KRS 61.878(1)(i) and (j) until final action on the question of sidewalk installation has been taken, and continuing protection thereafter if his recommendations, opinions, or proposed policies are not adopted as the basis of final action. See, e.g., City of Louisville v. Courier-Journal, Ky.App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373 (192); 00-ORD-139. Again, it is incumbent on the City to ascertain whether such records exist, to promptly advise Ms. Renau of its findings, and to articulate a basis for denying her access, if it elects to do so, in terms of the requirements of the exemptions upon which it relies.
In closing, we note that the City is not required to mail or otherwise furnish Ms. Renau with copies of records upon request and prepayment of reasonable copying and postage charges. Ms. Renau apparently resides and has her principal place of business in Jefferson County. Pursuant to KRS 61.872(3)(a) and (b), 3 read in tandem, she is entitled to receive copies of the records identified in her request only after she has first inspected them. See, e.g., 03-ORD-195 (enclosed). These provisions should not otherwise be construed so as to impede her right of access.
We remand this matter to the City of Windy Hills. Based on the principles set forth above, the City should take immediate action to rectify the errors in its original denial of Ms. Renau's request, and to afford her access to the public records for which no statutory exemption exists.
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.
Distributed to:
Lynn S. Renau726 Waterford RoadLouisville, KY 40207
Louis Phillips, MayorCity of Windy Hills703 Merrifield RoadLouisville, KY 40207
Foster L. Haunz, AttorneyCity of Windy Hills1 Riverfront Plaza, Suite 2016401 West Main StreetLouisville, KY 40202
Footnotes
Footnotes
1 To the extent that no written survey forms were sent out to the homeowners, we find these opinions inapposite.
2 Significantly, in 98-ORD-19 this office determined that apublic agency erroneously relied on KRS 61.878(1)(a) in denying a request for the names of individuals surveyed on a highway improvement issue. Applying the "comparative weighing of competing interest" analysis developed by the courts in Kentucky Board of Examiners of Psychology v. Courier-Journal, Ky., 826 S.W.2d 324 (1992) and Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1995), we observed:
The public interest to be served by disclosure of the information would be to inform the citizens as to what their government is doing. Disclosure of the names would enable the public to determine the responding individual's relationship to the contemplated highway improvements and whether that relationship was accurately reflected in the Cabinet's report of the study. The public has the right to know if the public agency's representation of the study's results, as reported, was accurate. Whether a governmental entity is accurately reporting the results of a public questionnaire or whether the survey itself is valid is a matter of legitimate public concern.
The questionnaire informed persons responding that his or her name was necessary to validate the results of the survey. By the same token, the public should be entitled to the same information to determine whether the public agency's reporting of the results of the study was accurate and valid.
The questionnaire requested the citizen's input relative to existing highway related concerns, regional growth and development, future improvement needs, environmental/ socioeconomic issues, and information as to the responding person's relationship to U.S. 460, such as where he lived, worked, use of the highway, and whether property was owned adjacent to the highway. As noted above, this office has previously recognized that a person's name is personal, but is the least personal thing about him. This type of information does not touch intimate or personal features of a person's life that is normally associated with an unwarranted invasion of personal privacy, subject to nondisclosure under KRS 61.878(1)(a).
On this basis, we concluded that disclosure of the names of the individuals to whom the survey was directed would not constitute a clearly unwarranted invasion of personal privacy. The City of Windy Hills should bear these observations in mind in the ultimate resolution of Ms. Renau's request.
3 KRS 61.872(3)(a) and (b) provide:
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.