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 Alvaton Volunteer Fire Department relative to the open records request of David Turner for a copy of "[a] petition, in the possession of the Chairman of the Board, which contains the name of the undersigned party as well as the signatures of an unknown number of individuals." For the reasons that follow, we conclude that the Fire Department improperly denied the request for a copy of the petition.
In his letter of appeal, Mr. Turner indicated that he personally delivered his request to David Wilkinson, Secretary and Records Custodian of the Fire Department on April 22, 2005. He further stated:
The document that I have requested has been referred to as a petition and is presently in the possession of Steve Masten, Chairman of the Alvaton Volunteer Fire Department Board of Directors. The petition asks the Board of Directors to seek removal of five Fire Department members and was distributed among members of the department and community to obtain signatures. This document has been discussed in at least two improperly held Closed Session meetings of the Board of Directors.
Mr. Turner stated that as of the date of his letter of appeal, April 29, 2005, he had not received a response to his request.
After receipt of notification of the appeal and a copy of the letter of appeal, this office was provided with a copy of the May 9, 2005 response of Steve Mastin, Chairman of the Board of Directors of the Fire Department, to Mr. Turner concerning his open records request. In his response, Mr. Mastin advised in relevant part:
A follow-up of our conversation, of May 2, 2005, at Alvaton Volunteer Fire Department, station 3, following the board meeting.
As a recap of our conversation, the document was given to me to use as I saw fit. The Board of Directors have not seen the document. The membership of the department has not seen the document. It has been in my possession since handed to me. Other than those who signed the document, I am the only other one who has seen the document in question. Since this document has not been presented to the department, I do not believe that it is subject to the open records law.
As stated last week, I do not believe this document should be seen by anyone other than those who have already seen it. To release the document to anyone would not help the department at all.
This office has previously held that a petition signed by individuals and presented to a public agency is not a preliminary document but becomes a public record subject to public inspection upon its submission to the public agency. In 04-ORD-192, we held that the City of Danville improperly withheld access to a petition signed by individuals supporting the sale of city owned property as correspondence with a private individual and finding that the petition was a formal written document requesting a right or a benefit from a group in authority upon which that authority was expected to rely in taking action relative to the sale of the property. In reaching this conclusion, we stated:
We are not persuaded that the record in dispute, a petition signed by individuals who support the sale of the city owned property, qualifies as correspondence with a private individual. As "a formal written document requesting a right or a benefit from a person or group in authority," Webster's II New Riverside University Dictionary, p. 879 (1984), it is a public declaration of support to which these individuals affixed their signatures. It therefore cannot be characterized as "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurance of confidentiality," but is in the nature of a communication upon which the commission is expected to rely in taking action relative to the sale of the property. The city acknowledges that the signers affixed their signatures with the goal of "advocat[ing] or recommend[ing] certain policy action." Because it cannot be properly characterized as correspondence with a private individual, it became an open record upon submission to the commission notwithstanding the fact that the commission had taken no final action in this matter. Accord, OAG 80-450; OAG 83-134; 00-ORD-172.
04-ORD-192, p. 4.
The facts in the instant appeal indicate that the petition, asking the Board to remove five Fire Department members, was personally delivered to the Fire Department's Secretary and Records Custodian on April 22, 2005 and is currently in the possession of the Chairman of the Board of the Fire Department. It is a communication by individuals advocating or recommending that the Board take action on an issue and became an open public record subject to public inspection upon its submission to the Board. 04-ORD-192. Accordingly, we find the Fire Department improperly denied Mr. Turner's request for a copy of the petition and a copy should be made available for his inspection.
The fact that the petition is currently in the possession of the Chairman of the Board of the Fire Department and has not been presented to the rest of the Board or the membership of the department does not change the result of our decision. The Chairman holds the petition as custodian on the Fire Department's behalf. It is the nature and purpose of the record, not the place or person that has possession of the document, which determines its status as a public record. See, 04-ORD-123, at pages 2 - 3. As noted above, the petition became a public record subject to public inspection when it was submitted to the agency.
Finally, KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three business days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. The failure of the Fire Department to respond in writing within three business days after receipt of Mr. Turner's request, personally delivered to the agency on April 22, 2005, constituted a procedural 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.
Distributed to:
David Turner, CaptainAlvaton Volunteer Fire Department10630 Cemetery RoadBowling Green, KY 42103
Steve Masten, ChairmanAlvaton Volunteer Fire DepartmentBoard of DirectorsP.O. Box 107Alvaton, KY 42122
Amy Hale MillikenAssistant County AttorneyOffice of the Warren County Attorney1001 Center Street, Suite 206Bowling Green, KY 42101