Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Oldham County Police Department violated the Kentucky Open Records Act in partially denying the request of John K. Huston for copies of "any & all complaints pertaining to any police officer within the Oldham County Police Department," including Tom Douglas. Because the OCPD has provided Mr. Huston with copies of any existing complaints against Officer Douglas, any issues relative to those records are now moot. In denying the remainder of Mr. Huston's broadly framed request, the OCPD properly relied upon KRS 61.872(3). As the OCPD has satisfied its statutory burden of proof, this office finds no error in its disposition of Mr. Huston's request.
In a timely written response, Michael Griffin, OCPD Chief, notified Mr. Huston that the OCPD is unable to honor his entire request as framed pursuant to KRS 61.872(3), which provides that the requester must precisely describe the public records which are "readily available within the public agency. " Citing 99-ORD-14, Chief Griffin correctly argues:
"[A] request for any and all records which contain a name, a term, or a phrase is not [a] properly framed open records request, and generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. "
If Mr. Huston will frame his request with more particularity, and "identify the nature, type and specific records" being sought, the OCPD will reconsider his request. Enclosed with Chief Griffin's response was a copy of the OCPD's "Standard Operating Procedures Manual on CD" along with "any citizen complaint information on Officer Thomas Douglas" as requested. According to Chief Griffin, certain information contained in the reports such as social security numbers, addresses, phone numbers, etc. was redacted pursuant to KRS 61.878(1)(a), as "disclosure of this information would constitute a clearly unwarranted invasion of personal privacy." 1
In a letter directed to Lieutenant W. B. Way on March 1, 2005, Mr. Huston attempted to clarify his request by asking for "any type of [misconduct reports or complaints] against any officer within the OCPD "let's say since 1999 to present, being February 29, 2005." 2 By letter dated March 1, 2005, Mr. Huston initiated this appeal from the partial denial of his request by the OCPD "in an attempt to uncover the truth" regarding Officer Douglas and the events which allegedly transpired between December 27, 2002, and May 10, 2003, involving Mr. Huston, his ex-wife, Patty Hines, and Officer Douglas. 3 Upon receiving notification of Mr. Huston's appeal from this office, John R. Fendley, Oldham County Attorney, responded on behalf of the OCPD. Citing KRS 61.872(3)(b), Mr. Fendley correctly observes that Mr. Huston's request is not framed with the requisite specificity. Because the request for complaints filed against Office Douglas was precise, the OCPD honored his request as to those records. In denying Mr. Huston's "extensive request," the OCPD properly relies upon OAG 76-375, in which this office held:
The right to have copies of records is ancillary to the right of inspection and does not stand by itself; if a person has not inspected the records he desires to copy and cannot describe them with specificity, there is no requirement that copies of any records must be delivered to him; a citizen may make a fishing expedition through public records on his own time and under the restriction and safeguards of the public agency, but a willingness to pay for copies of records is not sufficient to put the state agency under obligation to furnish broad categories of records.
Based on the foregoing, the OCPD asks this office to uphold its partial denial of Mr. Huston's request. Assuming the OCPD identifies which portions of the records provided have been redacted, and articulates the basis for denial in terms of KRS 61.878(1)(a), the OCPD has fully complied with the Open Records Act in responding to Mr. Huston's request.
On appeal, the OCPD confirms that Mr. Huston's request has been honored with respect to the records concerning Officer Douglas. Therefore, any issues relative to those records are now moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that if access to public records for which inspection or copying is sought is initially denied but subsequently granted, the propriety of the initial denial becomes a moot issue. 04-ORD-046, p. 5, citing OAG 91-140. Absent objective evidence to the contrary, which is lacking from the record, this office assumes that Mr. Huston has received copies of any existing records which are responsive to this portion of his request. That being the case, this office must decline to issue a decision on the merits of his appeal as to those records. Accordingly, the remaining question presented is whether the OCPD properly denied the remainder of Mr. Huston's request on the cited basis.
As correctly observed by the OCPD, the mandatory guidelines for accessing public records are codified at KRS 61.872(3), which 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 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. (Emphasis added).
In construing this provision, the Attorney General has consistently recognized:
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.
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." 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.
97-ORD-46, pp. 2-3; 04-ORD-011; 04-ORD-195.
As evidenced by the record, Mr. Huston currently resides in Little Hocking, Ohio, while the requested public records are located in LaGrange, Kentucky; Mr. Huston therefore satisfies the first requirement of KRS 61.872(3)(b). Accordingly, the narrow issue is whether Mr. Huston "precisely described" the records, and whether those records are "readily available within the public agency. " In our view, both questions must be answered in the negative. Contrary to Mr. Huston's implicit assertion, the distant location of his residence standing alone does not qualify him to receive copies through the mail. As correctly argued by the OCPD, this office has historically criticized "open-ended-any-and-all-records-that-relate-type requests" concerning a particular subject(s) or individual(s) such as the request at issue. 03-ORD-040, p. 2; 99-ORD-14; 96-ORD-101. More specifically, the Attorney General has recognized:
A request for any and all records that contain a name, a term, or a phrase, is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
99-ORD-14, p. 5 (emphasis added); 03-ORD-040.
In applying KRS 61.872(6), this office 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 92-56; OAG 91-58; OAG 89-81. 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 documents.
94-ORD-12, p. 3 (emphasis added); 02-ORD-246, p. 3; 99-ORD-14, p. 4.
Although the OCPD does not expressly rely upon KRS 61.872(6) as a basis for denial, Mr. Huston's failure to satisfy the threshold requirement to precisely describe the records requested, "relieves the [OCPD] of the duty to conduct a search for responsive records which may or may not exist," but that are clearly not "readily available within the public agency. " 03-ORD-067, p. 6; 04-ORD-011. 4 Because the records to which Mr. Huston requested access have not been identified with "reasonable particularity, " nor are the records of an identified, limited class, the OCPD could not estimate the number of records encompassed by his request or the amount of time its employees would expend in locating, retrieving and producing any responsive records in its custody. Even as revised, Mr. Huston's request is for copies of any reports of misconduct or complaints filed against any officer within the OCPD from 1999 to February 29, 2005. Such a request is properly characterized as a "request for research to be performed, rather than for inspection of reasonably described public records, " and this office has consistently recognized that the Open Records Act does "not require agencies to carry out research or compile information to conform to a given request." 04-ORD-090, p. 11, citing OAG 89-45, p. 3. Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, "public employees 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; 05-ORD-014; 04-ORD-195.
In responding to Mr. Huston's request, the OCPD has requested more precise information which will enable the OCPD to identify and locate the records requested. Given the lack of specificity, such a request is both reasonable and consistent with the Open Records Act. Assuming that Mr. Huston provides the OCPD with the requisite identifying information in writing, the OCPD should provide him with copies of any existing records in its custody upon receiving "advance payment of the prescribed fee, including postage," as permitted by KRS 61.874(1). To summarize, our view is that a request for any and all records of a particular type, or which contain a specific name, term, or phrase, is not a properly framed open records request, and generally need not be honored. Accordingly, the OCPD did not violate the Open Records Act in denying Mr. Huston's request for "any and all complaints pertaining to any officer within the [OCPD]" on this basis. That being said, this office encourages Mr. Huston and the OCPD to continue working toward an amicable resolution of this dispute - Mr. Huston by framing his request more narrowly, and the OCPD by continuing to exhibit a spirit of cooperation.
A party aggrieved by this decision may appeal it by initiating an 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.
John K. Huston147 Hillcrest DriveLittle Hocking, OH 45742
Michael GriffinChief of PoliceOldham County Police Department100 West Jefferson StreetLaGrange, KY 40031
John R. FendleyOldham County Attorney100 West Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 Although neither party raises this issue on appeal, this office refers the OCPD to 98-ORD-45 for the intrinsically situational analysis employed by the Attorney General in determining whether an agency has properly invoked KRS 61.878(1)(a). In order to satisfy its burden of proof relative to KRS 61.878(1)(a), the response of the OCPD must contain greater specificity than the OCPD has provided on appeal.
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2 Although Mr. Huston also asked "for the results [of] any internal investigations" of any officer within the OCPD stemming from complaints filed by citizens and/or other officers, including former Game Warden Glen Watson, Mr. Huston filed his appeal on the same day. Accordingly, any issues relative to Mr. Huston's revised request are not ripe for review. While Mr. Huston is entitled to submit a separate request, he cannot expand the parameters of his original request retrospectively since the OCPD must necessarily be given an opportunity to respond to the request as revised before this office can review the propriety of its actions relative to that request.
3 In short, this office is not equipped to resolve factual issues such as those raised by Mr. Huston in his letter of appeal nor is this the proper forum in which to address the related allegations. Most of the information is simply not germane to this appeal. KRS 61.880(2)(a) narrowly defines the role of the Attorney General in adjudicating disputes arising under the Open Records Act, and this office is without authority to deviate from this legislative mandate.
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4 In construingKRS 61.872(3)(b), this office has held:
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 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.
00-ORD-75, p. 12, citing 97-ORD-46, p. 5. On the facts presented, this reasoning is determinative. Having acknowledged that Mr. Huston is entitled to conduct his own "fishing expedition," the OCPD has discharged its statutory duty.
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