Request By:
Amy Wisotsky
5210 Moccasin Trail
Louisville, KY 40207Mayor Tom Eifler, Sr.
P.O. Box 6289
Louisville, KY 40206-0289Foster L. Haunz, City Attorney
One Riverfront Plaza, Suite 2016
401 West Main Street
Louisville, KY 40202-4234
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 Indian Hills in response to the open records requests of Amy Wisotsky violated the Open Records Act. For the reasons that follow, we conclude the City's responses were consistent in part and inconsistent in part with the Act.
In her first request, which was undated, 1 Ms. Wisotsky requested to inspect:
All books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by the City of Indian Hills that reference:
1. 5210 Moccasin Trail
2. 5208 Moccasin Trail
3. Amy Wisotsky
4. Henry Burt
5. Lorri Keeney
6. Steve Keeney.
In her letter of appeal, dated September 15, 2005, Ms. Wisotsky stated that she did not receive a timely response to her first request to the City and had not received any response to her second (revised) request. She further advised that on August 11, 2005, she had e-mailed Kelly Spratt, Chief of the Indian Hills Police Department, explaining to him that she had received a response to her open records request and that Chief Spratt had responded to her e-mail, advising that he did not know the status of her earlier request and that he had forwarded her e-mail to Foster Haunz, City Attorney for Indian Hills.
By letter dated August 11, 2005, Mr. Haunz responded to Ms. Wisotsky, advising her:
Your undated open records request directed to Mayor Tom Eifler, Sr. has been referred to me for answering in behalf of the City.
The request must be denied for the following reasons:
1. The request constitutes a blanket request which is not required to be honored. See OAG 85-107; OAG 76-375.
Your request is not limited to dates or times. One cannot reasonably tell what is being requested. For instance, any map from 1950 forward containing the word or showing 5210 Moccasin Trail could be included. Also, any tax bill with certain addresses from the time of the incorporation of the City to the present appear to be included.
2. KRS 61.878(1)(i). Correspondence with private individuals is being requested, and is exempted from the Open Records laws, where it does not give notice of any final action.
3. The request is unduly burdensome on the City if the city must search through years upon years of records to see if the "magic words" are in the document.
If you feel that you may locate the information you desire within the Minutes of City Council meetings within a specific time frame, we would be happy to make those Minutes available. You can call the city for a quick appointment.
By letter dated August 19, 2005, Ms. Wisotsky submitted a revised request narrowing the scope of her original request and asking to inspect the following records:
1. Review my personal file . A board member shared with me the contents of that file prior to the "neighbor dispute" issue and I would like to review the updated contents. Time frame: January 1988 through present.
2. Review all permits that were issued for 5210 Moccasin Trail (i.e.: for fence permit, renovation etc.) Time frame: January 1988 - present.
3. Review the permits that were issued for 5208 Moccasin Trail for fence and tree removal as this directly affects our property. Time frame: January 1988 - present.
4. Review the minutes of City Council meetings from January 2004 to present.
5. Review any documents initiated by Lori and/or Steve Keeney regarding our property at 5210 Moccasin Trail or that names us directly. Time frame: January 2004 to present.
By letter dated September 21, 2005, Mr. Haunz responded to Ms. Wisotsky's revised request advising:
Mayor Eifler has referred to me your letter dated August 19, 2005 for response. Apparently, there has been some misunderstanding.
In your undated request, you wanted to review minutes of Indian Hills City Council Meetings, and in my response to you dated August 11, 2005, I advised that we would make them available "if you will call for a quick appointment." This was even before your request of August 19, 2005. That offer continues and that is all the law requires.
As for the balance of your request, I must advise that the City of Indian Hills came into existence as a result of the vote of the electorate on the date certified by the Board of Elections. That date was November 18, 1999. Consequently we cannot go back beyond that date as we have no records held by the current City.
Your first request calls for your "personal file. " There is no such file held by the City of Indian Hills. You mentioned that a "board member" shared with you a certain file. We have no idea what you mean by that. If you will advise me of the identity of the alleged "board member" I certainly will investigate further. By "board member" I presume you mean "City Councilman" of which there are nine.
Your second request calls for permits issued for 5210 Moccasin Trail. The City has no record of any such permit.
Your fourth request calls for the Minutes and is addressed above.
Your fifth request demands any documents initiated by Lori and/or Steve Keeney regarding 5210 Moccasin Trail. By my letter to you dated August 11, 2005, that request was denied without even searching through any correspondence file based on KRS 61.878(1)(i). Correspondence with private individuals is being requested, and is exempted from the Open Records laws, where it does not give notice of any final action. There was no notice of any final action, if, in fact, there was any correspondence at all.
This date we received notice of your appeal to the Office of the Attorney General concerning your requests for records. Although we believe our earlier response dated August 11, 2005 responds to all your requests, even if the one thereafter made if it qualifies as an Open Records Request, we make this additional response to you and to the Office of the Attorney General.
We understand you have a boundary dispute or fence dispute with your neighbor. It is not the function of the City to resolve such dispute, this being the function of the Courts. This is what I orally advised you on April 11, 2005. The City simply does not decide on the common lot lines between two private individuals.
In a reply to Mr. Haunz' response, Ms. Wisotsky, in relevant part, asserts that the requested permits and her personal file the City has do exist.
Addressing first the issue as to whether the City timely responded to the first request, Ms. Wisotsky asserts that she mailed it on August 1, 2005, and received a response on August 12, 2005. In her letter of appeal, she states that on August 11, 2205, she notified the Chief of Police that she had not received a response from the City. The City indicates that a response was made to the request on August 11, 2005. To the extent the City failed to respond to the request in writing within three business days of its receipt, it would constitute a procedural violation of KRS 61.880(1).
We next address the City's response to the first request in which it denied the request on the grounds it was a blanket request for records that reference the named addresses and individuals. This office has 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.
Ms. Wisotsky's request for any records that reference the listed addresses and names falls into the definition of a "blanket request" insofar as she does not identify the records being sought with reasonable particularity or limit the class in any way. In order to comply with such a request, the City would be required to review every record, regardless of physical form or characteristic, to determine if the named addresses and individuals' names appear in the City's records. It is our view that such a request for any and all records which contain a specific name, term, or phrase is not a properly framed open records request, and it generally need not be honored. 99-ORD-14. Accordingly, the City did not violate the Open Records Act in denying Ms. Wisotsky's request on this basis.
We next address Ms. Wisotsky's request for records initiated by Lori and/or Steve Keeney. The City denied this request on the basis that the records, if they exist, would be exempt from disclosure under KRS 61.878(1)(i) as correspondence with private individuals that does not give notice of final agency action.
In 00-ORD-168, this office held that KRS 61.878(1)(i) , insofar as it extends protection to "correspondence with private individuals," is generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2. Clearly, the exception does not extend to "all writings from individuals to a government agency . . ." or from the agency to private individuals. OAG 90-142, p. 6. In the latter opinion, the Attorney General concluded:
Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids.
OAG 90-142, p. 6.
In 99-ORD-220, we applied this reasoning to applications from private entities or individuals to a governmental agency for licenses to do business, modifying OAG 90-142 to the extent that that opinion held that disclosure was mandatory only after final governmental action, and determining that the applications become open records upon submission. In 01-ORD-86, we extended this reasoning to applications for the purchase of conservation easements, holding that the applications did not qualify for exclusion from public inspection as correspondence with private individuals pursuant to KRS 61.878(1)(i), but instead became open records upon submission. See also, 00-ORD-98 (holding that Finance and Administration Cabinet's reliance on KRS 61.878(1)(i) to withhold correspondence with a private contractor on issues relating to the administration of the contract was misplaced; 02-ORD-86 (holding that the Purchase Area Development District improperly relied on KRS 61.878(1)(i) in denying request for applications for the purchase of conservation easements) ; 04-ORD-192 (holding that City of Danville improperly withheld 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); 05-ORD-072 (holding that letter from private attorney seeking clarification of agency position on an issue did not qualify for exclusion).
In this regard, if the requested correspondence exits, the City should assess whether it was submitted with the expectation of agency action or whether the records reflect correspondence exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. Accordingly, the City should promptly advise Ms. Wisotsky whether these records exist and whether they will be made available for inspection or qualify for exclusion from disclosure, as required by KRS 61.880(1).
We next address Ms. Wisotsky's request for her "personal file. " Ms. Wisotsky states such a file exists. The City states that it does not exist. 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.
Insufficient information is presented in this appeal for this office to resolve whether the requested "personal file" exists. See 03-ORD-061. The parties should continue to cooperate to resolve any differences or misunderstandings related to this record. The same would apply to Ms. Wisotsky's request for certain permit records that she states exist and which the City states do not.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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 proceedings.
Footnotes
Footnotes
1 In her letter of appeal, Ms. Wisotsky indicated that the request was mailed on August 1, 2005.