Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Cumberland subverted the intent of the Kentucky Open Records Act short of denial of inspection, within the meaning of KRS 61.880(4), in the disposition of Carl Hatfield's February 11, 2009, request to inspect and copy certain City records. For the reasons that follow, we find that the City's actions were unlawful.
In his February 11 request, Mr. Hatfield requested via facsimile transmission to inspect and copy the following:
1. All contracts and invoices that the city has received from Mr. Gary Williams, City Auditor, and or Barnett & Williams, CPA, PLLC.
2. A copy of the Open Records Act rules and regulations displayed in public.
3. Financial statement for Water/Sewer Departments for January 2009.
4. All statements and invoices from the city employees' health insurance carrier.
5. Taped recording of the January 28th council meeting.
6. Working schedule (time) of all city departments.
On February 13, 2009, Cumberland City Clerk Robin Smith sent a letter to Mr. Hatfield reading as follows:
Per your open request [sic]; we are not allowed to accept open request by fax, e-mail or by mail. You must come in person and fill out an open request form from City Hall. After you have submitted this form to the clerk; we will process your request.
Mr. Hatfield initiated an appeal to this office on February 17, 2009.
The City of Cumberland's response to this appeal was submitted on February 25, 2009, by City Attorney S. Parker Boggs. The City argues that the appeal is moot because on February 23, 2009, the City agreed to let Mr. Hatfield inspect and copy most of the documents requested. We do not view this appeal as moot, however, since some of the requested records 1 are still in dispute; we shall therefore consider the issues as presented by the City's original response dated February 13, 2009, from which this appeal was taken.
It is plain from the statutory language that KRS 61.872(2) allows requests for records to be submitted by fax or mail as well as in person:
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.
(Emphasis added.) The City subverted the intent of the Open Records Act by attempting to require Mr. Hatfield to submit his request in person. 2
It was equally a subversion of the intent of the Act, within the meaning of KRS 61.880(4), for the City to require the use of a special form for making a written request. As the Attorney General observed in 94-ORD-101:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. 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.
We further stated, in 07-ORD-257, that:
any local policy or procedure that deviates from the specific requirements of the Open Records Act constitutes a violation of the Act. This includes a requirement that the requester utilize an open records request form developed by the agency.
In accord with those decisions, we find that the City of Cumberland acted inconsistently with the Act by requiring the use of a specific form.
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 proceedings.
Carl R. HatfieldLoretta CornettRobin SmithSteven Parker Boggs, Esq.
Footnotes
Footnotes
1 Specifically, "[a]ll statements and invoices from the city employees' health insurance carrier. "
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2 Mr. Boggs advises in his response that he has advised the City to accept mailed or faxed requests in the future "as long as the City's request form is used."
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