Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in those consolidated open records appeals is whether the City of Cave City violated the Open Records Act in the disposition of open records requests submitted by Councilman Todd Esters over a period of time extending from December 2006 through January 2007. For the reasons that follow, we find that although the City's disposition of Mr. Esters' December 2006 request was procedurally deficient, its responses were, in all other material respects, consistent with the requirements of the Open Records Act.
By letter dated December 15, 2006, Mr. Esters requested access to 1 "the last five years' police arrest reports with case numbers and the arresting officer (only reports that were located in the city limits)." Apparently, the City did not respond to Mr. Esters' request in writing, and can provide no specifics as to dates, but otherwise advises that he was notified that "the records were available to him at any time that he wished to review them," and that copies would be produced upon inspection and request. Although this offer of onsite inspection has been extended to Mr. Esters, he apparently has not exercised his prerogative affirmatively. Nevertheless, the City advises, the records "remain available, having been separated from the other files."
By letter dated January 24, 2007, Mr. Esters requested copies 2 of six categories of records all of which were honored in a timely written response with the arguable exception of his request for "copies of all credit cards issued to the City of Cave City, limits of each card, and balances on each card to date." In handwritten notations appearing on his request and the City Clerk's response, Mr. Esters indicates that he "did not receive copies of statements, balances, or any copies of credit cards that the City holds." On a document released by the City entitled "Visa Accounts Numbers Expire 05/09," and identifying six city employees and their associated credit card numbers, Mr. Esters noted "This is for the credit card copies. [The City Clerk] did not mention Fleet Credit Cards or nothing [sic] on Walmart." 3 The City reaffirms that all requested records were released to Mr. Esters, noting that a State Fleet One document is not a credit card but is instead "an identification card used by all of the police officers issued by the State of Kentucky allowing them to purchase fuel at state rates." The remaining issues Mr. Esters raises, the City respectfully observes, are not appropriate for review under the Open Records Act. We agree.
To begin, the City erred in failing to respond in writing, and within three business days, to Mr. Esters' December 2006 request. Although he was apparently verbally notified that the requested records had been segregated and were available for inspection and copying, 4 KRS 61.880(1) expressly 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.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, 926 S.W.2d 856, 857 (Ky. App. 1996). "A limited and perfunctory response," the court concluded, does not "even remotely comply with the requirements of the Act . . ." Id. An agency's utter failure to respond is especially egregious. Consistent with the view that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request," see, e.g., 04-ORD-084, p. 3, citing 93-ORD-125, p. 5, "we urge the City of Cave City to review the cited provision to insure that future responses conform to the Open Records Act. "
Having identified a single procedural violation, we conclude that the City's disposition of Mr. Esters' requests was otherwise consistent with the requirements of the Open Records Act. All records which he specifically requested, and which were responsive to his request, have been released to him or are available for his inspection. The City did not provide him with copies of "statements, balances, or . . . any credit cards that the City holds." We hasten to note, however, that he did not request statements, but instead requested "credit cards issued by the City of Cave City, limits of each card, and balances on each card. " He was provided with credit card numbers rather than the actual credit cards, 5 and advised that there are no outstanding balances on any of the cards. If Mr. Esters wishes to review the actual credit card statement, he should submit a specific request for same thereby shifting the burden to the City to either release the statements or provide a statutory basis for refusing to do so. We are not inclined to assign error to the City for its failure to "read between the lines" of Mr. Esters' request and produce copies of credit card statements that he did not specifically request.
Nor are we inclined to assign error to the City for failing to produce State Fleet One documents since these are "information cards" issued by the State and not credit cards issued by the City, and therefore not responsive to his request. Finally, we are not inclined to assign error to the City other than the procedural error described above, for failing to provide Mr. Ester with copies of the requested arrest reports insofar as it was fully authorized to require him to conduct onsite inspection prior to obtaining copies per KRS 61.872(3).
The rancorous circumstances which appear to give rise to this appeal have no bearing on its outcome. As we have observed on more than one occasion:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, "we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request."
93-ORD-15, p. 6; see also 96-ORD-185 and 05-ORD-099. We cannot, in the context of an open records appeal, attempt to resolve any unrelated issues identified by Mr. Esters. Nor can we, generally speaking, "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4; 07-ORD-150. This is especially true when the written record before us is limited and the facts are in dispute. Based on this limited record on appeal, we find that with the single exception of the procedural violation noted above, the City of Cave City did not violate the Open Records Act in the disposition of Mr. Esters' requests.
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.
Todd Esters
Pamela N. HuntCity ClerkP.O. Box 567Cave City, KY 42127
Bobby H. RichardsonCity AttorneyP.O. Box 567Cave City, KY 42127-0567
Footnotes
Footnotes
1 Mr. Esters did not specify "copies" in his December 2006 request.
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2 Mr. Esters did specify "copies" in his January 2007 request.
3 Mr. Esters also attached a copy of an April 12, 2007, letter to Mayor Bob Hunt in which he entreats the Mayor "to speak with the City Clerk upon the issue of receipts, bills, cancelled checks, and invoices, etc., that we were promised by you in a previous meeting." Inasmuch as this letter constitutes a follow-up to a discussion at a public meeting, as opposed to an open records request, we do not treat it as the latter. If Mr. Esters wishes to pursue this issue through an open records appeal, he may do so by submitting an open records request to the City Clerk for "receipts, bills, cancelled checks, and invoices. "
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4 Because Mr. Esters is acouncilman, he must reside in the city, and therefore the county, where the records are maintained. KRS 83A.040(4). Pursuant to KRS 61.872(3)(a) and (b):
(3) 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 from the public agency 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.
In construing the latter provision, the Attorney General has observed:
[A] requester who both lives or 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 and 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.
97-ORD-46, p. 3; 03-ORD-094, p. 3. The City of Cave City could properly require Mr. Esters, a city resident, to conduct an onsite inspection of the requested records, as it did in responding to his request for arrest reports, or could waive its right to require Mr. Esters to conduct onsite inspection and instead furnish him with copies of the requested records, as it did in responding to his request for financial and operational records. We find no error in its actions in this regard.
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5 Given the potential for improper use of public credit cards, this office has recognized that appropriate precautions may be taken to insure their security pursuant to KRS 61.872(6). See, e.g., 95-ORD-121.
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