Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the City of Harrodsburg relative to the open records request of Bart McQueary violated the Open Records Act. We find that the City's actions were consistent in part and inconsistent in part with the Act.
By letter dated March 17, 2004, Mr. McQueary submitted a request to the City, asking for the following information:
1) All City ordinances in regards to the posting/erecting of monuments, stones, banners, signs, and other markers on City property by private citizens. Specifically but not limited to the requirements set out in your letter. Also, please include dates on which said ordinances were passed.
2) A notice of written consent from the immediate family of the "Unknown Person" buried in Young's Park granting permission to erect a monument to them.
3) A copy of the request by the family of Lt. David D. Randolph to erect a bench in his name along with any other pertinent documents concerning the bench.
In his letter of appeal, dated March 25, 2004, Mr. McQueary indicated that as of that date he had yet to receive a response from the City.
After receipt of notification of the appeal and a copy of the letter of appeal, David A. Taylor, City Attorney, provided this office with a response to the issues raised in the appeal. The City also provided Mr. McQueary with a copy of the response. With his response, Mr. Taylor provided copies of several ordinances which he stated pertained to Mr. McQueary's request number 1. In answer to question number 2 requesting information about a notice of written consent from the immediate family of the "unknown person" buried in Young's Park, Mr. Taylor advised that "the monument was placed there prior to the City owning the property, and has been there for 100 years or more." In response to question number 3, he explained:
The Harrodsburg's Women's Club, with the consent of Lt. David D. Randolph's family, asked the City Commission permission to erect a stone in memory of Lt. David D. Randolph. That permission was granted. However, prior to January 1, 2000, the City Commission minutes book was kept in chronological order, and not indexed until January 1, 2000. The minutes pertaining to Lt. Randolph are in record in chronological order, and we do not know the date, nor approximate date that permission was granted. It would place an undue burden upon City staff to research this matter. However, the records are available for Mr. McQueary's review at City Hall between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday.
Subsequently, Mr. McQueary provided this office with a reply to Mr. Taylor's response. In his reply, he stated ordinances provided by the City were not what he asked for. He further asserted that the City's response to his request was untimely and that the City's response to his request number 3, that it would pose an undue burden on staff to research its records to find documents relating to the request of the family of Lt. Randolph to erect a bench in his name, was not supported by "clear and convincing" evidence.
We are asked to determine whether the City's actions relative to Mr. McQueary's request violated the Open Records Act. For the reasons that follow, we conclude the City's response was consistent in part and inconsistent in part with the Act.
To begin, we find that the City's failure to timely respond to Mr. McQueary's request constituted a procedural violation of the Act. KRS 61.880(1) governs agency response to an open records request. That statute requires public agencies to respond in writing, and within three business days, to all open records requests, regardless of the identity of the requester or the nature of the records requested. If the agency elects to deny access to all or part of the records requested, it must cite the exception authorizing nondisclosure and briefly explain its application to the record withheld. The City's failure to discharge this statutory duty constituted a violation of KRS 61.880(1).
On April 9, 2004 the City did respond to Mr. McQueary's March 17, 2004 request by providing him with a copy of its response to the Attorney General. This did not cure the failure to timely respond to the open records request as required by KRS 61.880(1). A response to a letter of appeal, pursuant to 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement, and not supplant an agency's initial response or the requirement that it timely respond to an open records request. See 02-ORD-118.
Regarding request number 1, the City provided Mr. McQueary copies of several ordinances which it indicated pertained to his request. Mr. McQueary asserts that the provided ordinances are not responsive to 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 [the requester] 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.
Accordingly, the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to records sought.
Addressing request number 2, the City advised that "the monument was placed there prior to the City owning the property, and has been there for 100 years or more." This response seems to suggest that the City does not have records relating to request number 2. If this is the case, it should affirmatively advise Mr. McQueary of that fact. 04-ORD-016.
Finally, addressing request number 3, the City, in its response, explained to Mr. McQueary that prior to January 1, 2000, the City Commission minutes book was kept in chronological order and the minutes pertaining to Lt. Randolph were in record in chronological order, and it did not know the date, nor approximate date that permission was granted. The City asserted that it would place an undue burden upon City staff to research this matter. However, the City agreed to make the records available for Mr. McQueary's inspection at City Hall.
We do not find that the city's refusal to provide Mr. McQueary with copies of minutes pertaining to Lt. Randolph constituted a violation of the Act, since it has agreed to afford him an opportunity to conduct an on-site inspection for those records. KRS 61.872(3) establishes guidelines for records inspection under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
Thus, 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. An applicant like Mr. McQueary, who lives or works in the same county where the public records are located, may be required to inspect the records prior to receiving copies. The City of Harrodsburg is located in Mercer County. Mr. McQueary, in his letter of appeal, lists his mailing address to be in Harrodsburg, Kentucky. The City may, therefore, require him to conduct an on-site inspection for the records prior to furnishing him with copies of those records. 03-ORD-013.
Moreover, in OAG 76-375, p. 3, we recognized that if a requester cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " In 94-ORD-12, p. 2, we articulated the following standard for determining whether a requester has described the records sought with adequate precision:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents. ([E]mphasis added).
In 99-ORD-210, this office held that where the requester did not, or could not, identify the minutes of specific meetings to which he desired access, he must expend his own time and energy in reviewing the agency meetings in order to locate and extract those which contain the information he was seeking.
Under these circumstances, the City can properly require Mr. McQueary to come to its office to conduct his own search through the files for the records he seeks. As noted above, the City has agreed to permit Mr. McQueary to review the City's records to obtain the records he requests. Accordingly, we conclude that this response of the City to Mr. McQueary's request number 3 did not constitute a violation of 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.