Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Housing Authority of Paducah violated the Open Records Act in denying Melvin Moss's May 4, 2006, request for "a copy of the section of the Housing Authority Lease stating [that he is] in violation of [his] lease for communicat[ing] with [the Housing Authority's] attorneys in the law firm of Denton & Keuler." For the reasons that follow, we find that the Authority violated the Act in failing to produce a copy of that portion of the lease that was responsive to Mr. Moss's request, or alternatively, advising Mr. Moss that the lease does not contain a responsive portion.
In a response dated May 8, 2006, Executive Director Cal Ross acknowledged that the Authority "previously asked . . . 'you to cease and desist from contacting our attorneys and failure to comply with our order may be considered a violation of your lease. '" 1 Continuing, Mr. Ross observed:
I am not sure what you want from us as to where it is found in your lease regarding that specific language. We will just have to leave it up to the court to decide what may or may not acceptable behavior for any of our residents. We do not need to defend our statement. Our attorneys are under contract to this housing authority. It would appear to represent a conflict of interest for them to provide any information or assistance to you involving this housing authority. I am sure you understand attorney/client privileges and contract law regard such conflicts. Please do not contact our attorneys.
Shortly thereafter, Mr. Moss initiated this open records appeal seeking review of the Authority's denial of his request.
In supplemental correspondence directed to this office following commencement of Mr. Moss's appeal, Melissa D. Yates, an attorney in the law firm of Denton & Keuler, amplified on the Authority's position. Noting that Mr. Moss "has previously been provided with two copies of his lease agreement with the Housing Authority of Paducah," she maintained:
As I read Mr. Ross' letter, it requests that Mr. Moss cease contacting Denton & Keuler and instead contact the Housing Authority if there were any issues which needed to be addressed and states that it may be a violation of his lease to refuse this request. Mr. Moss then asks for copies of the lease provisions which Mr. Ross is relying upon in making that assertion. While the Housing Authority of Paducah will certainly provide Mr. Moss with another copy of the lease if he so desires, it is my opinion that the Open Records Law does not require Mr. Ross to explain his understanding or interpretation of the lease agreement to Mr. Moss since no action has been taken to terminate Mr. Moss' lease or to evict him.
Respectfully, we disagree.
In 01-ORD-51, this office determined that the Fayette County Public Schools violated the Open Records Act in the disposition of a request for:
The portion of the Fayette County Board of Education Policies and Procedures for Exceptional Children that contains the policies and procedures that addresses placing the name of a standardized test in the annual goal portion of an Individual Education Plan, as well as the portion of the policies and procedures that addresses using grade levels in this area of an Individual Education Plan.
01-ORD-51, p. 2. The requester acknowledged previous receipt of the policies and procedures manual, but his review of the manual disclosed no such prohibition. It was the policy containing the prohibition, and only that policy, that he wished to access through the Open Records Act.
As in the appeal before us, the Fayette County Public Schools responded to the request for a specific portion of a general document by advising the requester.
[T]he Kentucky Open Records Law does not require the District to provide a "written statement of the legal authority or legal opinion(s)." That law refers to specific documents in the possession of the District. In your letter, you have acknowledged receipt of the document entitled Board of Education Policies and Procedures for Exceptional Children. You are again requesting "information" rather than "documents" and such information is not being provided under this request.
This office rejected FCPS's position, determining that the agency:
was obligated to cull that portion of the manual, or other applicable authority, that contains the policy prohibiting inclusion of a named standardized test or specific grade level in the annual goals portion of an IEP and furnish a copy to [the requester] , or to advise him in clear and direct terms that no records responsive to his request exist. A public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the documents requested exist. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101; 96-ORD-164; 00-ORD-104. At page 3 of OAG 86-38, we construed the obligation of a public agency relative to a request to inspect documents, noting that "KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. " We explained:
Echoing this view, in OAG 90-26, at page 4, we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."
05-ORD-51, p. 3.
Rejecting FCPS's claim that the subject request was framed with insufficient precision to permit a categorical denial of the existence of the record, we concluded:
The fact that [the requester] wished to obtain a copy of the specific and individual policy, as opposed to the entire handbook, did not transform his request for a document into a request for information. The fact that he could not identify the desired policy by page and section number did not render his request imprecise or nonspecific. Clearly, FCPS had no difficulty in identifying the subject of his inquiry . . . . [Nevertheless, the FCPS] elected to treat the request as an improperly framed request for information. We believe it was a properly framed request for an individual policy or policies pertaining to this subject, and FCPS was statutorily obligated to furnish him with copies of the policy or policies, as opposed to the entire handbook, or unequivocally advise him that no responsive policy exists. In sum, we find that FCPS has improperly equated an obligatory search for a particular policy with a request for nonobligatory research to be performed. If its obligatory search uncovers no responsive policy, it must affirmatively so state.
01-ORD-51, p. 4. Accord, 02-ORD-150 (holding that commingling of responsive and nonresponsive records in response to open records request "precluded the requester from conducting . . . [a] meaningful review," and directing agency to "identify and cull out that discrete set of records from the 1,300 records disclosed that is responsive to . . . [the] request").
It is the decision of this office that 01-ORD-51 is dispositive of the issue presented in this appeal. Here, as in 01-ORD-51, we find that the fact that Mr. Moss requested a copy of a specific lease provision, as opposed to the lease in its entirety, did not transform his request for a document into a request for information. Here, as in 01-ORD-51, we find that the fact that he could not identify the provision by page or section number did not render his request imprecise or nonspecific. Mr. Ross acknowledges having advised Mr. Moss that failure to cease and desist from contacting the Authority's attorneys "may be considered a violation of your lease, " and Mr. Moss provides this office with a copy of the April 18, 2006, letter so stating. There can be no confusion as to how Mr. Moss might infer the existence of a lease provision prohibiting a tenant's conduct with the Authority's attorneys. It was Mr. Moss's inability to locate such a provision in the lease that prompted his appeal, just as in 01-ORD-51 the requester's inability to locate a referenced policy in the District's policies and procedures manual prompted him to initiate an appeal.
Here, as in 01-ORD-51, we find that Mr. Moss's request was a properly framed request for that portion of the lease prohibiting tenant contact with Authority attorneys, and that the Authority was statutorily obligated to furnish him with that portion of the lease, as opposed to the entire lease, or unequivocally advise him that no responsive portion of the lease exists. Once again, we find that a public agency, here the Paducah Housing Authority, has improperly equated an obligatory search for a portion of a lease with a request for nonobligatory research to be performed. If the Authority's obligatory search for that portion of the lease identified in Mr. Moss's request yields no results, the Authority must so advise Mr. Moss in writing.
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.
Melvin Moss1205 S. 9th # 1Paducah, KY 42003
Robert C. RossExecutive DirectorHousing Authority of Paducah2330 Ohio StreetPaducah, KY 42003
Melissa D. YatesDenton & Keuler, LLP555 Jefferson Street, Suite 301P.O. Box 929Paducah, KY 42002-0929
Footnotes
Footnotes
1 Mr. Moss's appeal contained a copy of the April 18, 2006, letter from Mr. Ross in which this statement appears. It was this statement that prompted Mr. Moss's open records request and subsequent appeal.