Request By:
Richard Nolan
Beverly Stivers
Bobbi Jo Lewis
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Anderson County PVA (PVA) subverted the intent of the Open Records Act, short of denial of inspection, in its disposition of Richard Nolan's request to inspect certain documents of the PVA office. For the reasons that follow, we find that the PVA's disposition of Mr. Nolan's request constituted a subversion of the intent of the Act within the meaning of KRS 61.880(4). 1
By letter dated December 14, 2007, Mr. Nolan submitted the following request to the PVA office:
1. All requests for mileage reimbursement for Brian Stivers for the calendar years 2005 and 2006 and calendar year to date.
2. All checks for those mileage reimbursements in item 1 above.
3. Checks written to Brian Stivers for reimbursement of travel expenses to Summer and Fall PVA conferences in 2007 and the Fall conference in 2006.
4. Your published policy on the cost of records furnished to the public. (On the wall over your copy machine. )
5. I also respectfully request to inspect your copy machine for the purpose of obtaining the make and model of the machine and to obtain the name of the company that services the machine for you.
In a letter dated December 18, 2007, Beverly Stivers, Anderson County PVA, advised Mr. Nolan that the requested records were available for his inspection and requested that he visit the office to review them during office hours, 8:30 A.M. thru 4:30 P.M. Monday thru Friday.
In his January 7, 2007, letter of appeal, Mr. Nolan stated that, in the last week of December or first week of January, he went to the PVA's office and neither the PVA nor the Deputy PVA were there and no one knew anything about his records request and the records which were to be available. He indicated that one person suggested that if he had made an appointment, someone would have been there. He stated that he called Brian Stivers, the Deputy PVA, the following day and advised that he would be in before 4:30 p.m. Mr. Nolan stated that when he arrived, the Deputy PVA pointed to a wall full of file cabinets and advised that he could look at whatever he wanted. Mr. Nolan stated that he replied that he was not going to hunt through all those file cabinets to find the records he requested. Mr. Nolan indicated that he returned a couple of days later and asked to see the records he requested and the Deputy PVA provided him with a file of several hundred pages. He stated that he asked for only the records he had requested and the Deputy PVA asserted that an agency was not required to compile records. Shortly thereafter, Mr. Nolan initiated the instant appeal, stating that there was no way he was going look though a thick folder for documents and give someone an excuse to claim he took something from the file. Mr. Nolan also asserted that, in a response to a previous request, the agency had charged him 25 cents per page for copies of records which had been provided to him.
In a letter dated January 7, 2008, Beverly Stivers, Anderson County PVA, in response to Mr. Nolan's request, advised him:
Based on your requests as per your visits to our office this morning, I have compiled a copy of mileage reimbursements for Brian Stivers for the calendar years '05 thru '07. Also included are reimbursements for John Hanks, Margaret Woodside, and Beverly Stivers.
As always our records are open for your review but as a courtesy to you I have taken time away from office duties to prepare and compile this statement for you.
Attached to her response was a statement of the aforementioned mileage reimbursements, which she had compiled for Mr. Nolan.
After receipt of Ms. Stiver's compilation of the mileage reimbursements, Mr. Nolan in a letter dated January 14, 2008, provided this office with a reply, stating:
I didn't ask for the compiled list they sent and it does not suffice at all for the original documents I requested to inspect. There is also no mention of other documents (checks) that were written (supposedly) that I also requested to inspect.
Addressing his request for the PVA Office's published policy on the cost of records furnished to the public; Mr. Nolan advised that the PVA provided a copy of a rental agreement for a copy machine showing that they will be billed between 19.3 cents and 13.9 cents per page depending on usage. He countered that a ream of copy paper could be purchased retail for less than one cent per page. Mr. Nolan argued that it would appear from the information furnished that the PVA's office was in violation of the Open Records Act because it had not substantiated the 25 cents per page they charged for copies of public records.
By letter dated January 17, 2008, Mr. Stivers provided this office with a response to the issues raised in the appeal. In his response, he advised that the PVA's office was making an effort and would continue to make an effort to satisfy Mr. Nolan's request. He explained that Mr. Nolan had been to the office on four occasions and had been provided with the records and documents he had requested to inspect. He further stated that on two occasions, he had pulled the documents himself and presented them to Mr. Nolan for inspection and he refused on both occasions saying the PVA needs to have them ready for inspection when he walks in the door.
In a January 18, 2008, letter, Mr. Nolan provided this office with a reply to Mr. Nolan's response, reiterating his argument that the PVA's office needed to pull the requested documents out of the files and make them available for his inspection.
We agree with Mr. Nolan's position and find that the Office of the Anderson County PVA subverted the intent of the Open Records Act, short of denial of inspection, by commingling nonresponsive records with responsive records so as to create unnecessary impediments to effective inspection and by asserting that it had no duty to produce only responsive records. 07-ORD-105.
In addressing the issue of commingling nonresponsive records with responsive records, this office in 07-ORD-105 stated:
? In at least three open records decisions previously issued by this office, the Attorney General has determined that public agencies "improperly equated an obligatory search for [responsive records] with a request for nonobligatory research to be performed." See 01-ORD-51, p. 5; 02-ORD-150; 06-ORD-117. The facts giving rise to 02-ORD-150, and the holding in that decision, are particularly apropos . There, the requester submitted a series of requests for records relating to a formal complaint to the Department of Education by the Fort Thomas Independent School District. The District responded by producing a large volume of records, but failed to "identi[fy], segregat[e], and disclos[e] the specific records identified in [the] request that [was] the subject of [the] appeal." Id. at 1. At page 7 of the decision, we held that although:
For this reason, we concluded, "the District's efforts fell short of the statutory requirements codified at KRS 61.880(1)."
While the facts giving rise to this appeal do not conclusively establish an intent on the part of the Board to impede [the requester's] inspection of the records identified in her request, we find no support in existing legal authority for the proposition that "[t]here is no requirement to collate, compile, or pre-copy information for the requester (which may be designed to keep a public agency from influencing the direction of a citizen's search in order to hide information)." Nor do we believe that the Board acted properly in providing her with "anything that was contained in the files with her target information." The language of the statute governing agency action is unambiguous. It requires the agency to produce records responsive to an open records request formulated with sufficient specificity to enable the agency's custodian of records to locate and retrieve those records. Accord,
Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996); (holding that a records description is adequate if it enables the agency's custodian to "identify what documents the applicant[] wish[es] to see . . .").
Id at p. 5-6. (Footnotes omitted.)
As in 07-ORD-105, the facts giving rise to this appeal do not conclusively establish intent on the part of the PVA to impede Mr. Nolan's inspection of the records identified in his request. However, the language of the statute governing agency action is unambiguous. It requires the agency to produce records responsive to an open records request formulated with sufficient specificity to enable the agency's custodian of records to locate and retrieve those records. In this case, Mr. Nolan's request was formulated with sufficient specificity for the PVA to identify and locate the records requested, as is evidenced by the PVA's compilation of a statement of the requested mileage records, which it provided to
Mr. Nolan. Although the PVA went above and beyond its statutory duty in compiling the statement, this does not excuse the agency from its duty to permit him to inspect nonexempt public records. 99-ORD-4.
Mr. Nolan was entitled to immediately inspect the requested records during the PVA's regular office hours once the agency notified him in writing that the records were available for review. In the interest of absolute clarity, we reiterate that he cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the agency. 06-ORD-158.
Accordingly, the PVA must "identify, segregate, and disclose" records responsive to Mr. Nolan's request for his inspection. 07-ORD-105. If no responsive records exist, it is incumbent on the Board to affirmatively so state. 06-ORD-117. Until it has done so, its obligations under the Open Records Act will not be fully discharged.
Mr. Nolan also raises a reasonable copying fee issue. He indicated that the PVA charged twenty-five cents per page for records provided to him. We refer the parties to 98-ORD-95 (copy enclosed) for a discussion of reasonable copying charges under the Open Records Act. Unless the PVA can demonstrate that its actual cost for reproducing records, excluding staff costs, is greater than ten cents per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874. 98-ORD-95.
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 KRS 61.880(4) thus provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.