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 Letcher County Fiscal Court and 911 Coordinator violated the Kentucky Open Records Act in denying the request by the City of Whitesburg "to inspect and copy or be provided with a list of those individuals [registered voters in Letcher County] and their 911 addresses living within the City limits." In failing to issue a written response within three business days, citing the applicable statutory exception and briefly explaining how it applies, the Fiscal Court/911 Coordinator violated the mandatory terms of KRS 61.880(1); however, the Fiscal Court/911 Coordinator ultimately relied upon KRS 65.752 (3) and (4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 65.754(1) and (2) (penalties for violation of KRS 65.752) as the bases for denying access thereby satisfying the burden of proof imposed by KRS 61.880(2)(c). In sum, the Fiscal Court/911 Coordinator's response is procedurally deficient but substantively correct.
By letter directed to Jim Ward, Letcher County Judge Executive, and Jim Revis, Letcher County 911 Coordinator, on February 22, 2007, Mayor James W. Craft advised that the Letcher County Clerk had requested the City, pursuant to KRS 116.200, to provide "specific information in order to maintain a roster of voters who are eligible to vote in City elections. " As observed by Mayor Craft, the "purpose is to permit the County Court Clerk to code all registered voters in Letcher County in such a manner that precinct election officers may determine an individual['s] eligibility to vote in City elections. " Because the City had not received a written response, John D. Asher, City Attorney, initiated this appeal on behalf of his client in a letter dated March 15, 2007, explaining that in preparation for "an upcoming special election to be held on April 17, 2007, referencing a wet/dry vote, the City anticipated it would need to identify all areas incorporated within the City of Whitesburg, as well as identify all eligible voters. "
According to Mr. Asher, the Judge Executive "did provide the City with a directory of all street names in Letcher County as identified by the 911 Coordinator, but this list included no names or street numbers, which would have assisted the City in preparing the list of eligible votes for the County Court Clerk." Being a rural area, "some streets lie inside, but extend outside the City limits. The particular houses/or street numbers, as per their assigned 911 address, are needed to identify which residences lie inside the corporate limits of the City." In addition, the City "was served, via Certified Mail, correspondence dated March 5, 2007 from the Letcher County Court Clerk, requesting a list of voters, a city map and a map of precincts for the City. (Copy attached)" In the City's view, this request "is serving a legitimate governmental need and is necessary in the performance of a legitimate government function of identifying all eligible or potential voters within the limits of the City of Whitesburg."
Upon receiving notification of Mr. Asher's appeal on behalf of the City from this office, Harold D. Bolling, Letcher County Attorney, responded on behalf of the Fiscal Court/911 Coordinator. According to Mr. Bolling, he "verbally responded" to the City's request, advising that the information being requested "(names and addresses of the citizens of Whitesburg) was confidential and private by statute (KRS 65.752(3)(4) and KRS 65.754(1)(2)). That Letcher County could and would provide Mr. Asher with a map setting out the names of the streets and roads in Whitesburg and Letcher County." 1 Although the map was provided to Mr. Asher, his request for the names and 911 addresses of City residents was denied. Because the General Assembly has expressly afforded protection to such information, this office must affirm the denial by the Fiscal Court; however, the Fiscal Court may wish to reconsider its blanket policy in light of KRS 61.878(5) and the legitimate governmental purpose for which the information is being requested.
As a public agency, the Fiscal Court/911 Coordinator is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for responding to requests submitted pursuant to the Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the Fiscal Court/911 Coordinator's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). From a procedural standpoint, the Fiscal Court/911 Coordinator violated the Open Records Act in failing to either issue a written response within three business days, citing the applicable exception and briefly explaining how it applies, or provide the detailed explanation and written commitment mandated by KRS 61.872(5). Bearing in mind that public agencies have the burden of proof in denying requests pursuant to KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide detailed and particular information in response to a request for documents," this office cannot reach any other conclusion.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996); See 97-ORD-170. In responding to future requests, the Fiscal Court/911 Coordinator should be guided by the longstanding principle that procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187. 2
Turning to the substantive issue presented, as a threshold matter this office notes that neither party has indicated whether "fully enhanced 911 service has been implemented" in the City, as required for application of KRS 65.752 , upon which the Fiscal Court relies exclusively in denying access. In the absence of evidence to the contrary, the Attorney General must assume this prerequisite has been met. That being said, our duty in resolving the issue presented "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. As with any decision involving statutory interpretation, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Our analysis is necessarily guided by these fundamental principles, as well as the statement of legislative policy codified at KRS 61.871, "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed[.]"
Although neither party has cited, nor has our independent research revealed, any binding authority which is directly on point, this office is not without guidance in resolving the issue presented. In 04-ORD-161, the Attorney General was asked to determine, in relevant part, whether the Lexington Fayette Urban County Government properly relied upon KRS 65.752(4) in providing a written summary of a specified 911 telephone call as opposed to a copy of the recording itself. Of particular significance here, this office addressed the scope of the protection for private information afforded by KRS 65.752(4) as follows:
PSAP is defined at KRS 65.750(8) as "a communications facility that is assigned the responsibility to receive 911 calls originating in a given area and, as appropriate, to dispatch public safety services or to extend, transfer, or relay 911 calls to appropriate public safety agencies[.]" ALI [Automatic Location Identification] is defined at KRS 65.750(3) as "a feature by which the name and address associated with the calling party's telephone number is made available to a PSAP[.]" The prohibition on disclosure is restricted, by its express terms, to ALI information, meaning the name and address associated with the calling party's telephone number appearing as an automatic display on an ALI computer screen. It does not extend to the underlying recording of the incoming 911 call. Accordingly, we find that LFUCG's Division of Public Safety, operating as a PSAP for the purpose of receiving 911 calls and dispatching public safety services as appropriate, is not foreclosed from releasing recordings of 911 calls under the narrow prohibition on disclosure of ALI information codified at KRS 65.752(4).
Id. at p. 4 (emphasis added). See 06-ORD-230. Although the public agency was not prohibited from disclosing the recording at issue on the basis of KRS 65.752(4), in our view, the necessary implication was that ALI information could properly be redacted.
In other words, the names and addresses requested, or ALI information, fall(s) within the parameters of KRS 65.752(4), the express and mandatory terms of which preclude an employee of a PSAP (which Letcher County 911 presumably is) from retrieving or disclosing that information without a court order; likewise, KRS 65.752(3) requires the "service supplier" 3 to maintain the confidentiality and privacy of all information contained in the ALI/DBS in the absence of a court order. When viewed in conjunction, these provisions evidence a clear intent by the General Assembly to ensure that such information is adequately protected; the Fiscal Court/911 Coordinator did not violate the Act in denying the City's request on these bases.
Having so concluded, this office feels obliged to comment regarding the circumstances under which the request was made and, further, to suggest a statutorily authorized method for resolving the dispute. According to KRS 61.878(5):
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
In construing this provision, the Attorney General has consistently recognized that "public agency exchange of otherwise exempt public records is a 'laudable goal,' and one that is to be strongly encouraged," insofar as it "eliminates duplication of effort and conserves resources." 96-ORD-177, p. 7. Of course, KRS 61.878(5) "is grounded in the notion that the recipient agency will responsibly and appropriately use the [records or] information [provided]." 96-ORD-164 (overruled on other grounds in 96-ORD-177); accord, 03-ORD-211. See also 96-ORD-110 (KRS 61.878(5) "has been interpreted to mean that even if records are exempt from the public generally, they should be made available to public agencies, and by extension, public officials, for legitimate governmental purposes")(citations omitted); 03-ORD-134.
Here, the original request was clearly submitted by the Mayor in furtherance of a legitimate governmental purpose (identifying eligible voters prior to a special election) and in the performance of a legitimate government function. In our view, KRS 61.878(5) was designed to address exactly this kind of situation; the Fiscal Court/911 Coordinator could impose restrictions in order to adequately preserve the confidentiality of the information. Although KRS 61.878(5) is not mandatory, nor can the Fiscal Court/911 Coordinator be deemed to have violated the Open Records Act in declining to honor the City's request, this office encourages the agency to reconsider its position in light of the foregoing observations and the unique facts presented. See 06-ORD-254. With the exception of the noted procedural violation, the Fiscal Court/911 Coordinator acted in compliance with KRS 65.752(3) and (4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying the City's request.
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.
James D. Asher
Jim WardLetcher County Judge Executive107 Courthouse156 Main Street Whitesburg, KY 41858
Jim RevisLetcher County 911 Coordinator156 Main Street, Suite 107Whitesburg, KY 41858
Harold D. BollingLetcher County Attorney40 Main Street Whitesburg, KY 41858
Footnotes
Footnotes
1 In relevant part, KRS 65.752 provides:
(3) In areas where fully enhanced 911 service has been implemented, the service supplier shall maintain the confidentiality and privacy of all information contained in the ALI/DBS ["'Automatic location identification data management system (ALI/DBS)' means a system of manual procedures and computer programs used to create, store, and update the data required for ALI in support of enhanced 911" per KRS 65.750(4)], including any information that identifies telephone calls made from extensions on DPTS [Dispersed Private Telephone System defined at KRS 65.750(5)], except when release of the information is ordered by a court of competent jurisdiction.
(4) In areas where enhanced 911 service has been implemented, an employee of a PSAP shall not retrieve or disclose ALI information except in response to a 911 call or for the purpose of maintaining the ALI database, unless ordered by a court of competent jurisdiction.
Accordingly, KRS 65.754 provides:
(1) Any owner, employee, or agent of a DPTS that knowingly or wantonly violates the provisions of KRS 65.752(2) shall be fined not less than twenty-five dollars ($ 25) nor more than two hundred dollars ($ 200) or imprisoned in the county jail for not more than ninety (90) days, or both. Each day the violation continues shall be considered a separate offense.
(2) Any owner, employee, or agent of a DPTS or a service supplier that violates the provisions of KRS 65.752(3) shall be subject to the following penalties:
(a) For a first offense, a Class A misdemeanor; and
(b) For a second and subsequent offense, a Class D felony.
2 As a corollary proposition, the Fiscal Court/911 Coordinator should bear in mind that a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. See also 04-ORD-208.
3 KRS 65.750(9) defines "service supplier" as "a person or entity that administers, maintains, and operates the ALI/DBS and may include telephone companies that provide local exchange telephone service to a telephone subscriber[.]" Our decision is premised on the assumption, given the lack of evidence concerning this issue, that Letcher County 911 is properly so characterized.