Opinion
Opinion By: A. 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 Mt. Washington subverted the intent of the Open Records Act, short of denial of inspection, and within the meaning of KRS 61.880(4), in postponing Neil J. Alioto's access to a broad range of financial and operational records identified in his November 13, 2003 request, and in requiring Mr. Alioto, in some instances, to conduct an onsite inspection of the records as a precondition to obtaining copies of those records. 1 For the reasons that follow, we affirm the City's disposition of Mr. Alioto's request and find no evidence that the City subverted the intent of the Act.
In her November 13, 2003 response to Mr. Alioto's November 10, 2003 records application, Mt. Washington City Clerk Christi Franklin outlined each of his seven requests and the City's disposition of those requests. As a prefatory matter, she explained:
Due to the limited time for response and the large number of materials requested, I will assemble the information that I have been able to locate in the City's file as of November 13, 2003. Some items will be duplicated for you, information is not available for some items, and others will be made available for you to inspect. For those items that copies will be provided, they will be available on Thursday, December 11, 2003 at a fee of $ .10 per page and $ 5.00 per map. After I compile the information, I will inform you of the total cost for duplication. I estimate it will take four (4) weeks to compile the information and make the necessary duplications. The four week time frame was determined by using the following criteria: 1) Your request is large and requires a substantial amount of time to make the duplications. 2) City tax bills were mailed on October 22nd and Due December 31 and this is the busiest time for my office. 3) The Thanksgiving holiday is within this time frame. 4) I have several prior commitments outside of the office within this time frame. If you would like this information prior to December 11th, you may inspect the records and obtain the necessary duplications during regular business hours.
Turning to the substance of Mr. Alioto's requests, and the City's disposition thereof, Ms. Frankin continued:
1. Copy of all invoice presented to the City of Mt. Washington requesting payments for services, items sold, personal service contracts or any items paid by it or refused payment by the City of Mt. Washington for the fiscal year 2003-2004 to date, 2002-2003 and 2000-2001. This will be duplicated for you by December 11, 2003.
2. Copy of the City of Mt. Washington check registers for each bank account it maintained for the fiscal years 2000 through 2004 to date. If check registers are not available, please furnish a copy of each check. Please relate or attach the paid invoice to the check which it paid. The check registers will be duplicated for you by December 11, 2003. Please be advised that the check register is a computer listing of all checks issued, including but not limited to the payee, check number and amount paid. Therefore, this cannot be attached to each invoice.
3. For the fiscal years 2001-2002, 2002-2003, 2003-2004 to date please provide a copy of request or order for each sewer and each water tap on fee, each contractor rebate or refund of tap fees or partial rebate or refund of tap on fees. Name each applicant who was refused any tap on refund or partial refund of fees. All applications for water and sewer taps for the above mentioned fiscal years will be duplicated for you by December 11, 2003. If a person is denied a water or sewer tap, it is denied verbally; therefore no written documentation exists. Regarding the refund (rebate) of tap on fees, the requests are used as the invoices and are filed with the invoices and will be duplicated for you within your request number 1 as listed above. In addition, the rebates that have been denied are also filed with the invoices and will be duplicated for you within your request number 1 as listed above.
4. For the fiscal year 1999-2000, 2000-2001, 2002-2003, 2003-2004 to date please provide a copy of each Ordinance of annexation, the legal description of each tract annexed and a copy of the plat filed with each annexation proceeding. A copy of each annexation ordinance will be duplicated for you by December 11, 2003. Each annexation ordinance contains a legal description; therefore this information is included. In addition, a plat for each property is filed with the annexation ordinances; therefore this information will be duplicated for you by December 11, 2003.
5. Provide a copy of documentation for the fiscal years of 2001-2002, 2002-2003, 2003-2004 for income received, all taxes collected with sources identified as they relate to fines, real estate taxes, Kentucky State grants, federal grants, Kentucky State loans, federal loans, bond loans and/or issues, rents, refunds, interest or any other source. Every source of income shown in the City budget or not shown in the City budget. The source of each fund or income item should be related to that fund or income item. Copies of working papers used in preparing budgets over the years requested. Copies of official audits for each and every years that are requested. KRS 62.872(3)(b) requires the requester to precisely describe the records which he wishes to access by mail. The City has several different reports (records) that document the income of the City and your request does not specify the exact document you want. You are welcome to perform an onsite inspection of the records to determine the exact income records you want, and those records can be duplicated for you. Regarding your request for working papers used in preparing budgets, KRS 61.878(3)(i) [sic] states that preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency is exempt from public inspection. Working papers used in preparing budgets are considered preliminary drafts and therefore are not available for inspection. As for the audits, these will be duplicated for you by December 11, 2003.
6. Provide copies of grant papers, grant contracts, loan papers, loan contracts, mortgage or liens against the City of Mt. Washington for real or personal property, pledges of City income to secure payments of notes or bonds with State or Federal institutions, banks, corporations or individuals for the fiscal years 1979-1980, 2000-2001, 2001-2002, 2002-2003, 2003-2004 to date. KRS 61.872(3)(b) states a person may inspect the public records by receiving copies of the public records through the mail 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. Due to the fact that the City's grant, loan, mortgage and lien records are located in various filing cabinets, boxes and other storage methods, throughout the City's offices, and locating these requested records would require a large amount of research, I have determined that these records are not readily available within the public agency; therefore these files will be made available to you for your inspection during regular business hours.
7. Provide a copy of any complaint and/or summons in any court in which the City of Mt. Washington is or was a party for fiscal years 1979-1980 to current date. KRS 61.872(3)(b) states a person may inspect the public records by receiving copies of the public records through the mail 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. Due to the fact that the above mentioned records are located in various filing cabinets, boxes and other storage methods throughout the City's offices, and locating these requested records would require a large amount of research, I have determined that these records are not readily available within the public agency; therefore these files will be made available to you for your inspection during regular business hours.
On appeal, Mr. Alioto challenges "the good faith claim the city has made," questioning why records cannot be mailed to him as they are reproduced, and asserting that each of his requests was "clear" and "very specific." In general, he maintains that the City's disposition of his requests will result in an unreasonable delay.
In supplemental correspondence directed to this office following commencement of Mr. Alioto's appeal, Ms. Franklin elaborated on the city's position. She observed:
In his appeal, Mr. Alioto stated that the requested records are being unreasonably delayed. Using the same procedure that I follow for all open records requests, I review the entire request to determine the date that all records in the request can be located and duplicated for the requesting party. I do not set separate dates for each individual item included in the request. I estimated the records will take four (4) weeks to compile and make the necessary duplications using the following criteria: 1) The request is large and requires a substantial amount of time to make the necessary duplications. In particular, Mr. Alioto's item number one in his request asks for "copies of all invoices presented to the City of Mt. Washington requesting payments for services, items sold, personal service contracts or any items paid by it or refused payment by the City of Mt. Washington for the fiscal year 2003-2004 to date, 2002-2003 and 2000-2001." This item only covers three fiscal years, but each year consists of two and one half (2 1/2) filing drawers of invoices. Therefore for all three fiscal years requested, I must duplicate seven and one half (7 1/2) filing drawers of invoices. This is extremely time consuming . . . [and] therefore, I feel that the December 11th date is fair.
. . .
Please note that I am not denying Mr. Alioto's request, but set a reasonable date in which the records will be duplicated for him.
Mr. Alioto questioned that if he personally appeared in my office, if my staff or I would have the time to locate and duplicate the records. KRS 61.872(1) states that a person may inspect the public records. This would place the burden of locating the records on the person appearing at the agency. I would show him the location of all the records and he would research the exact records he would like duplicated. Suitable facilities are available for his review and a copy machine is available for his use. Therefore, neither my staff nor I would be required to spend a large amount of time assisting Mr. Alioto.
In closing, Ms. Franklin noted that she and her staff "are employees and servants to the people, not just Mr. Alioto," and that the City is fulfilling its duty "by duplicating the documents for him" or otherwise affording him immediate access to the records identified in his request by onsite inspection.
On December 16, 2003, Ms. Franklin notified this office of "a new development regarding the open records appeal by Neil J. Alioto." She advised:
I contacted Mr. Alioto on Tuesday, December 9, 2003, and stated that the requested records were ready and the cost would be $ 603.20. Although he previously requested the records be mailed to him, I wanted to confirm this because the records fill two copy paper cases (5732 pages and 6 plat maps) and the cost to mail would be quite substantial. Mr. Alioto stated that he would pick up the records.
As of this morning, Alioto had not picked up the records or contacted my office to make other arrangements. Ironically, while I was writing this letter, a person from Mr. Alioto's office came to my office, paid for the records and picked them up. However, I do find it odd that Mr. Alioto is appealing the four week time frame for the records in my response to him, and yet it took him one week from the time he was notified the records were ready to the time they were picked up. Apparently he didn't want the records as quickly as he originally indicated.
It is the decision of this office that the City of Washington discharged its statutory duty by notifying Mr. Alioto, within three business days, that it could not provide him with copies of the records identified in his request on the third day after receipt of his request, providing him with a "detailed explanation of the cause for the delay," 2 and affording him timely access to the wide range of records requested by establishing a reasonable time for production of copies and otherwise permitting him immediate access by onsite inspection.
In 01-ORD-140, the Attorney General observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). [T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added.) Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
01-ORD-140, pp. 3, 4.
The record on appeal in OAG 92-117, cited above, supported an agency delay of twenty-one days in honoring an open records request. The agency, Department for Social Services, demonstrated that it served one hundred and twenty-three local offices in one hundred and twenty counties across the state, each of which maintained its own records. Requests for records maintained in local offices were nevertheless processed by and through the Department for Social Services, which was obliged, upon receipt of a request, to locate the records in the appropriate county office, retrieve those records, and review them before releasing them for inspection. Given the broad scope of the request ("any and all records in the possession of the [then] Cabinet for Human Resources upon which [requester's client's] name appears or which may concern her"), the ongoing nature of the Department's investigation into the requester's client, and the need to obtain a copy of the records, and review them upon conclusion of the investigation but prior to making disclosure, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis 'timely access.'" OAG 92-117, p. 5; see also, 02-ORD-62 (fourteen day extension of the deadline for inspection was not unreasonable given the broad parameters of request, the difficulties in locating and retrieving responsive records, and the necessity of reviewing them for the purpose of redacting private information).
Conversely, the record on appeal in 01-ORD-140, cited above, did not support a delay of ten to thirteen days. The requester identified three specific documents which he wished to inspect, and the records custodian acknowledged that he knew "precisely where the documents were located." The records custodian did not maintain that the records contained a mixture of exempt and nonexempt information, necessitating review prior to disclosure for purposes of redaction. Thus, we concluded that the agency did not offer a satisfactory explanation for the ten to thirteen day delay, and that its disposition of the request was inconsistent with the principle that "the value of information is partly a function of time." Fiduccia at 1041; see also 93-ORD-134; 99-ORD-44; 00-ORD-117.
We believe that the facts before us in this appeal are more closely akin to the facts before us in OAG 92-117 than the facts before us in 01-ORD-140. The City of Mt. Washington described, in detail, the problems associated with retrieving and duplicating the nearly 6,000 pages implicated by Mr. Alioto's request and ultimately reduced the production date by several days. In addition, the City extended an offer to him to conduct an onsite inspection of the requested records during regular business hours in the intervening period. Thus, on any date after November 13, Mr. Alioto was free to examine the records. We find that the four week delay in reproducing the voluminous and widely dispersed records that Mr. Alioto requested was not inordinate, and that the City's explanation for the delay associated with reproduction of the records was adequate for purposes of KRS 61.872(5).
This is especially true in light of the fact that Mr. Alioto did not precisely describe the records he wished to access by receipt of copies through the mail, and those records were not readily available within the City's offices. KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
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 these provisions, the Attorney General has observed:
The Open Records Act . . . contemplates records access by one of two means: On-site 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. 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. 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. See, e.g., 95-ORD-52; 96-ORD-186. . . .
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 which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail.
97-ORD-46, p. 2, 3 (emphasis added).
It appears that Mr. Alioto has his principal place of business, and may reside, 3 in Louisville, Kentucky. The records that are responsive to his request are located in Bullitt County. Mr. Alioto satisfies the first requirement of KRS 61.872(3)(b). The narrow issue, therefore, is whether he "precisely described" the records, and whether those records "are readily available within the public agency. " Mr. Alioto requested a broad range of financial and operational records of the City of Mt. Washington for periods of time as great as 23 years. He did not request a specific record or records, but categories of records such as invoices, check registers, documentation for income received, grant papers, and complaints or summons. Contrary to the view Mr. Alioto expresses, such a description is not "clear" or "very specific."
In 97-ORD-46, this office established the standard by which the precision of an open records request is measured. At page 6 of that decision, we observed:
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe 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.
Given the broad scope of his request as to categories of records sought, and the length of time for which they were sought, we cannot agree that he precisely described the records he wished to access by receipt of copies through the mail.
Nor can we agree with Mr. Alioto that those records are readily available within the agency. As we noted at page 6 of 97-ORD-46:
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.
Based on the concluding sentence of this quotation, we find that the City fully discharged its duty under the Open Records Act when it extended an invitation to Mr. Alioto to conduct an onsite inspection of the widely dispersed and voluminous public records. The City's willingness to assume the additional duty of reproducing and mailing the records to Mr. Alioto, albeit in a period of time exceeding three business days, attests, in our view, to its good faith in disposing of this matter. Because the City agreed to afford him immediate access to the records onsite, and established a reasonable date on which the records would be reproduced and mailed, we find no error in the disposition of Mr. Alioto's request.
In closing, we note that the City is entirely correct in the view that its employees have no express obligation to assist Mr. Alioto should he elect to conduct an onsite inspection of nonexempt public records. In OAG 89-91, the Attorney General declared that public agency employees are not required to provide instruction in understanding the meaning or impact of information which appears upon records produced. Instead, they are required to make available for inspection, during normal office hours, the record requested and thereafter permit the requester 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. While we urge the City to extend reasonable courtesy to Mr. Alioto, or any open records requester, we find that the City afforded Mr. Alioto the opportunity to conduct his own onsite inspection and that the Open Records Act does not require more.
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:
Neil J. Alioto7211 Fegenbush LaneLouisville, KY 40228
Christi Franklin, ClerkCity of Mt. WashingtonP. O. Box 285Mt. Washington, KY 40047-0285
Rodney BurressCity AttorneyCity of Mt. WashingtonP. O. Box 1000Mt. Washington, KY 40165-1000
Footnotes
Footnotes
1 In responding to Mr. Alioto's request, the City denied him access to a narrow category of documents consisting of work papers used in preparing budgets on the basis of KRS 61.878(1)(i). That exception authorizes nondisclosure of, inter alia, preliminary drafts and notes. Mr. Alioto does not contest the City's position relative to these documents which comports with prior decisions of this office. See, e.g. 97-ORD-188 and 98-ORD-17.
2 KRS 61.872(5).
3 We are unable to confirm Mr. Alioto's residence.