Request By:
Robert E. Taylor IIIBob HigginsKathy StradtnerW. Scott Crabtree
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 City of Franklin violated the Kentucky Open Records Act in the disposition of Robert E. Taylor's request "to inspect the health insurance proposals submitted . . . for the 2007-2008 fiscal year (May 15, 2007 opening date)." Insofar as the City failed to issue a written response within three business days of receiving Mr. Taylor's written request dated June 6, 2007, which complied with KRS 61.872(2), the City violated the mandatory and express terms of KRS 61.880(1); a public agency cannot require a requester to complete a particular form as evidenced by prior decisions of this office. Likewise, the City failed to establish that the records being sought were in "active use" in belatedly invoking KRS 61.872(5), the only exception to KRS 61.880(1). To the extent the City has not displayed a copy of the rules and regulations it has adopted pertaining to public records, including the title and contact information for its official custodian of records, "in a prominent location accessible to the public," the City stands in violation of KRS 61.876(2). 1
In a letter dated June 11, 2007, Mr. Taylor initiated this appeal challenging the actions of the City relative to his request. Because the City "does not disagree with the chronology and factual contents of Mr. Taylor's letter with regard to his contacts with the City[,]" that chronology of events is set forth below:
May 16, 2007: I e-mailed a request to inspect the health insurance bids to Franklin's City Manager, Bob Higgins, around Noon local time.
May 16, 2007: Mr. Higgins called me and discussed my request, around 6:00 p.m.
June 06, 2007: I hand delivered a follow-up to the May 16 request to City Hall, around 4:00 PM.
June 08, 2007: Franklin's City Clerk, Kathy Stradtner, hand delivered a partially completed "Public Records Inspection Form" to my father's law office. I am unsure of time of delivery, but I'm guessing it was around the noon hour.
June 08, 2007: I hand delivered the signed [form] to City Hall, along with an additional statement[] around 4:00 PM.
June 11, 2007: I visited City Hall and spoke with Kathy Stradtner; no records were made available to me.
According to Mr. Taylor, City Manager Bob Higgins "said that he would be happy to let" him review the submitted bids, "but that he would like to wait until after the Insurance Committee had its first meeting" which "would likely" be on Friday, May 18. Since the meeting "was likely to occur in the next couple of days," Mr. Taylor was "satisfied" that he would have an opportunity to review the documents "well ahead of the next regularly scheduled City Commission meeting on June 11, 2007." Because the City did not contact him after that, Mr. Taylor delivered a letter on Wednesday, June 6, 2007, to Mr. Higgins, reiterating his request to inspect "the health insurance proposals" 2 submitted.
On Friday, June 8, 2007, the City Clerk left some partially completed forms at his father's office; Mr. Taylor added his telephone number, signed and dated the forms, and returned the forms to City Hall that afternoon. As noted by Mr. Taylor, the City's response dated June 8, 2007, "indicates that the records are available, but denies inspection until June 12 -- the day after the City Commission [was] expected to take action on the submitted bids. " Given that the City acknowledged on June 8, 2007, "that the records were, in fact, available for inspection, " Mr. Taylor asserts that denying his "right to immediate inspection during regular office hours violates the intent of KRS 61.872." Conceding that "email requests are not included in the specific language of the statutes and thus the City is not required to honor such requests," Mr. Taylor argues that "the City Manager's affirmative telephone response to the email request combined with a lack of any written or email notice" that the request would not be honored "appears to be indicative of the City's willingness" to accept the request.
Upon receiving notification of Mr. Taylor's appeal from this office, W. Scott Crabtree, Franklin City Attorney, responded on behalf of the City. As explained by Mr. Crabtree, the City received bids "for group health insurance, workers' compensation insurance, and property and casualty insurance on Tuesday, May 15, 2007 at 4:00 p.m." Generally agreeing with Mr. Taylor's factual summary, Mr. Crabtree emphasizes "there was no official written request by Mr. Taylor, which is required by the City prior to providing records." In addition, "City representatives, as Mr. Taylor admits, were reviewing the bids so the records were in active use pursuant to KRS 61.872(5)."
Quoting the language of KRS 61.872(2), Mr. Crabtree notes that the City Clerk is the official custodian of the City's records; however, all of Mr. Taylor's prior verbal and written requests were directed to the City Manager. In any event, the City Clerk "provided the Public Records Inspection Application to Mr. Taylor on June 8th." According to Mr. Crabtree, the City's response "was timely since June the 8th was a Friday and we provided the records on Tuesday, June 12th." To elaborate, the City Commission had a meeting on June 11, 2007, at which time the City Commission "was reviewing bids in an effort to make an award to the lowest and best responsive, responsible bidder. Prior to that time, City representatives were reviewing the bids in an effort to make a recommendation to the City Commission." On a related note, Mr. Crabtree emphasizes that the City Manager's responses "clearly indicated that the records were in use." Although the City Manager "did not verbally quote the statute and state with specificity the reason for not providing the records [as required by KRS 61.880(1)], it is clear by his actions and intent that the City was using the records and was not going to withhold them."
In conclusion, Mr. Crabtree asserts that the City "has never honored email open records requests to the best of [his] knowledge and belief. Quite frankly, that would be quite burdensome if the general public could e-mail any City employee to make a request." Consequently, the City requires the requester "to complete [its] application and submit it to the City Clerk, the official records custodian. In this regard, the records can be retrieved more efficiently." Noting that Mr. Taylor correctly observed that the City is not statutorily required to honor e-mail requests, Mr. Crabtree requests a ruling in the City's favor.
By letter dated June 26, 2007, Mr. Taylor replied. Regarding the official custodian issue, Mr. Taylor knew that he could submit a request to the City Clerk and has done so in the past, but was not aware that "directing requests through her was a requirement in order for that request to be considered valid" since the City does not provide any notice to that effect. Mr. Higgins, a member of the Insurance Committee that was to review the documents and the City Manager, "made no effort to redirect [Mr. Taylor] or inform [him] of the need for a traditional written request, even though [his] e-mail specifically asked that he let [Mr. Taylor] know if a more formal request would be necessary." Taken as a whole, Mr. Higgins' actions "would appear to constitute, by a clear course of conduct, an agreement to accept, as submitted, the email request in question."
Regarding his "follow-up request to Mr. Higgins (letter dated June 06, 2007), the City Clerk's response advised [Mr. Taylor] that the records were available on that very day (if not earlier), but that [he] could not have access until June 12th -- the day after the bids were expected to be awarded." Noting that the City "made no claim as to unavailability or any particular burden in allowing the inspection, " Mr. Taylor argues that as he reads it, KRS 61.872(5) requires a public agency to allow inspection during normal business hours if a document is available -- "the statute does not have an after three days have passed' clause in it." 3 In addition, Mr. Crabtree asserts that until someone completes the form provided by the City a valid request has not been made and "then proceeds to calculate a three-day period based on a June 08, 2007 request date" thereby ignoring a "major point" of Mr. Taylor's appeal. If the e-mail request is deemed invalid, then Mr. Taylor believes that June 6, 2007, should be the date from which time is measured rather than June 8, 2007.
With regard to Mr. Crabtree's assertion that the documents in question were in "active use" over a period of almost four weeks, Mr. Taylor argues "the claim is materially untrue. First of all, copies of the bids had been made so that members of a five-person 'Insurance Committee' could have easier access to that information." According to Mr. Taylor, "any argument that the requested documents are unavailable for review [was] greatly mitigated by the existence of multiple copies of said documents." Even if no copies had been made, "the idea that the original bid documents were in perpetual, active use for [] weeks on end, is simply not realistic[.]" In fact, "the first time that anyone proposed the argument that the requested records were unavailable for inspection because they were in use (or any other reason) was when Mr. Crabtree" responded on behalf of the City to his appeal. To the contrary, "all communication, verbal and written, from the City indicated that the documents were available for inspection; [Mr. Taylor] was just not allowed to see them. Active use implies just that, active use. " In conclusion, Mr. Taylor responds to Mr. Crabtree's assertion regarding the "specific procedures" employed by the City for Open Records requests, arguing that Mr. Crabtree fails to mention that the City "has not adopted an open records policy in conformity with the provisions of KRS 61.870 to 61.884, as required by KRS 61.876." 4
On August 6, 2007, Mr. Taylor supplemented his reply via facsimile, attaching a "copy of prior, unrelated [open records] related inquiries to, and the response from, the City of Franklin." As illustrated by exhibits A-1 and A-2, the City Manager received and responded to his letters; that was a "contributing factor" to his belief that requests did not have to be submitted to the City Clerk. Also attached is a letter from Mr. Crabtree which constituted the City's "sole response to the same prior unrelated open records request." As with the City Manager's correspondence, "if the City Attorney provides a sole response" to a request "one might conclude that it is also an acceptable [method] to submit new open records request[s] directly to him." Of course, "the overriding factor regarding the appropriate method of submitting a request" is the City's failure to develop and "post in a prominent location" the City's rules and regulations pertaining to open records requests. "Reasonable people, having the same past interactions with the City as [Mr. Taylor has], could conclude that directing an open records request to any of the three individuals mentioned by name would be sufficient to effect a 'proper' request." In our view, Mr. Taylor is correct.
As a threshold matter, the somewhat contentious nature of the relationship between the parties has no bearing on the outcome of this appeal; neither the identity of the requester nor his/her purpose in requesting access is relevant absent a commercial purpose. As consistently recognized by this office:
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 05-ORD-099; 96-ORD-185. In other words, our review is confined to issues arising under the Open Records Act. 5
As a public agency, the City of Franklin 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 . (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 City'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). In both 01-ORD-140 and 93-ORD-134, the Attorney General concluded that the public agency failed to provide timely access to the records identified in the request; we reach same result on the facts presented. 6 To the extent the City failed to issue a written response within three business days of receiving Mr. Taylor's request, its response violated the express and mandatory terms of KRS 61.880(1); likewise, the City's initial response contained neither the specificity envisioned by KRS 61.880(1) nor the detailed explanation and written commitment mandated by KRS 61.872(5).
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one." 02-ORD-165, p. 3. Nevertheless, the only exception to this general rule is found at KRS 61.872(5), which the City did not invoke until after Mr. Taylor filed his appeal. Id. In addition, the City has failed to establish on appeal that all of the records were in "active use" within the meaning of KRS 61.872(5); the City interprets that phrase too broadly. 7 Although a public agency may exercise its discretion to waive the requirement of receiving a written request from the applicant, like the City did here in our view, 8 "it is not relieved of its obligation to issue a written response which conforms to the requirements of KRS 61.880(1) to any open records request, regardless of whether the request is communicated orally or in writing." 99-ORD-210, p. 2.
In relevant part, KRS 61.872, belatedly cited by the City as partial justification for its delayed response, provides as follows:
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
Even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2) , relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2; OAG 76-588. Assuming arguendo that the City did not waive these requirements in verbally responding to Mr. Taylor's e-mail request dated May 16, 2007, the letter which he delivered on June 6, 2007, complied in all particulars with KRS 61.872(2); receipt of such a request triggers application of the statutory requirements codified at KRS 61.880(1), pursuant to which public agencies must respond in a proper and timely fashion -- by June 11, 2007, in this instance. Public agencies cannot reject a request, or otherwise avoid statutory duties, merely because the requester "did not use the specific form devised by the public agency [,]" like the City did in responding to Mr. Taylor's written request. 94-ORD-101, p. 3; 01-ORD-247. "A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records." Id. To the contrary, records which are "easily described and readily available, such as [the requested proposals], should not be temporarily withheld from inspection by red tape under the pretense of complying" with the Act. Id., p. 4.
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.
Footnotes
Footnotes
1 Because the City did not invoke any of the statutory exceptions codified at KRS 61.878(1) but ultimately provided Mr. Taylor with a copy of the requested proposals, our analysis focuses exclusively on the procedural issues raised by Mr. Taylor.
2 See 05-ORD-001 and 04-ORD-175 for the relevant analysis regarding bid proposals generally.
3 While a public agency does have three business days in which to respond per KRS 61.880(1), the City exceeded the permissible time frame in this case.
4 As long recognized by the Attorney General,KRS 61.876(1) and (2) are:
. . . aimed at [ensuring] that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [Footnote omitted.] . . . [Public agencies] must adopt rules and regulations pertaining to [their] open records polic[ies], or [they] may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs. [They] must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them. . . .
94-ORD-12, pp. 6-8; 98-ORD-200. Early on, this office held that KRS 61.876 requires each public agency to adopt rules pertaining to public records; failure to do so constitutes a violation of the Open Records Act. OAG 78-340. See also 04-ORD-053; 95-ORD-49. On appeal, the City does not refute Mr. Taylor's allegation that no such rules and regulations have been posted. Because the "broadest possible dissemination" of a public agency's rules and regulations concerning public records is mandated by both the letter and the spirit of the Act, the City stands in violation of the Act to this extent.
5 In addressing factual disputes between arequester and a public agency, the Attorney General has also repeatedly observed:
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 has 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.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204.
6 As previously indicated, "a determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 93-ORD-134, p. 12. Here, the City merely asserts that members of the City Commission were reviewing the bids requested which, standing alone, is not adequate justification for denying access; the City does not refute the claim that copies existed and were readily available. Public agencies must work, "in a spirit of cooperation, with individuals who request to inspect their records to [ensure] that those individuals are afforded timely access to the records they wish to inspect. " Id.
7 Early on, this office recognized that every request to inspect a public record "causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with provisions of the law. . . ." OAG 77-151, p. 3. That being said, the legislative intent is that "public employees exercise patience and long-suffering in making public records available for public inspection. " Id.
8 Although a public agency is generally deemed to have waived this requirement in responding via the same method used for submitted the request -- e-mail in this instance -- a telephone call from the City Manager to whom the request was directed via e-mail could reasonably be perceived as a waiver of this requirement when the circumstances are viewed in their entirety. To hold otherwise would elevate form over substance.