Request By:
Peter F. Neidhardt
Joe Schoenbaechler
Chief Rick Albers
Raymond Simpson
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the North Oldham Fire Protection District violated the Kentucky Open Records Act in the disposition of Peter F. Neidhardt's written request for minutes from unspecified meetings of the Board of Trustees and other information concerning volunteer firefighter benefits and reimbursement located in various records of the agency. Although the District violated KRS 61.880(1) in failing to provide timely access, a public agency is not statutorily required to provide information, create a record, perform research, or compile a list in order to satisfy a request, nor must a public agency issue written responses to questions under the Act. In accordance with KRS 61.872(3), the District is permitted to require inspection prior to providing copies when, as in this case, the requester lives/works in the same county where the records are located. Mr. Neidhardt is also precluded from obtaining copies in the mail prior to inspection under KRS 61.872(3) because he did not "precisely describe" the records being sought, nor can the records consequently be characterized as "readily available" within the agency.
By letter directed to Joe Schoenbaechler, Board Treasurer, on January 13, 2009, Mr. Neidhardt asked 1 the "following questions . . . under the Kentucky Open Records Act" :
What volunteer expenses does the reimbursement program cover? Please send me the minutes as to when the program started and how the individual trustees voted. Also, please include the original reimbursement rate and any minutes where this rate has changed over time and how board members voted.
In addition to the above please include a detailed yearly accounting of how much the program cost and how much each individual firefighter or any other individual has received under this program since its inception.
Rick Albers stated at the December [B]oard meeting that he was in possession of two rulings from the IRS regarding the legality of the volunteer reimbursement program. One stating the program was permissible under IRS regulations and one stating it was not. Please include those two conflicting rulings in your return post.
In conclusion please send figures as to how much the reimbursement program has increased since its commencement along with how much general revenue has increased over the same period.
In a belated response dated January 24, 2009, Mr. Schoenbaechler advised that he "instructed Chief Albers to compile certain information" for him so that he could respond appropriately. Because "of the historical nature of some of the information requested," Mr. Schoenbaechler further advised Mr. Neidhardt "there might be a delay in getting a response to [him]," but indicated that he would "try to get something to [him] within the next two weeks." Having received no additional response, Mr. Neidhardt initiated this appeal by letter dated June 11, 2009, asking this office to "compel the North Oldham Fire Protection Board of Directors to answer all our questions immediately and in full."
Upon receiving notification of Mr. Neidhardt's appeal from this office, Mr. Schoenbaechler responded on behalf of the District. Although he offered no explanation for the agency's failure to send a final response to Mr. Neidhardt's request, Mr. Schoenbaechler advised that Mr. Neidhardt had requested "information that is not contained in separate, individual documents that can be identified, but is contained in (a) minutes of the [B]oard of [T]rustees, (b) financial statements, (c), budgets, (d) audits, and (e) other records of the North Oldham Fire Protection District covering the period from 1985 to 2009." According to Mr. Schoenbaechler, those "documents are available for personal inspection at the [District's] headquarters located at 1660 Highway 1793 South, Goshen, KY, 40026, between the hours of 9:00 a.m. and 3:00 p.m. on Tuesdays, Wednesdays or Fridays, after fort[y]-eight (48) hours [sic] notice for scheduling of particular documents at particular times in order not to interfere with the operation of the [D]istrict." 2
Regarding the first item of Mr. Neidhardt's request, Mr. Schoenbaechler noted that "the reimbursement program is not an IRC Section 62(c) and IRS Regulation 1.62-2 accountable plan, but a 29 U.S.C. 9 Fair Labor Standards Act and 29 CAR Section 553 U.S. Department of Labor Regulation regarding nominal fees and benefits for volunteer firefighters. " Mr. Schoenbaechler advised that "no record of two IRS rulings or any reference to IRS regulations" exist. 3 In conclusion, Mr. Schoenbaechler indicated that if Mr. Neidhardt ultimately requests that copies be made "of any identified documents," they will be provided "at a reasonable cost upon prepayment." 4 Given the "voluminous nature of the documents referenced" and the broad time frame, the District is unable to "calculate the number of copies and cost associated with this request without [Mr. Neidhardt's] inspection and designation." By letter dated June 26, 2009, Mr. Neidhardt reiterated his position, asking this office to "compel" the District to "answer all [of his] questions immediately and in full at no charge." In accordance with the express language of the Act and prior decisions, the Attorney General must respectfully decline this request.
As a public agency, the District is obligated to comply with procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to written requests. 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 construing the mandatory language of this provision, the Kentucky Court of Appeals observed that "[t]he language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996).
By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "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). As the Attorney General has frequently noted, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Here, the District initially failed to issue a written response to Mr. Neidhardt's January 13, 2009, request until January 24, 2009, clearly beyond the permissible time frame. Although the District's belated response indicated that Mr. Neidhardt would receive a final response "within the next two weeks," the agency took no further action until Mr. Neidhardt filed this appeal.
Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 5 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days under specified conditions. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 02-ORD-165, p. 3, citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must " immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5); 06-ORD-254; 02-ORD-165. Said another way, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain . 01-ORD-38, p. 5 (Emphasis added). Elaborating on this view, in 01-ORD-38 the Attorney General declared that "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " Noticeably absent from the District's initial and supplemental responses are both of these mandatory elements. While extending the statutory deadline may have been justified in this case, and specifying an exact date may have been challenging, the District's initial response was untimely and neither of the responses contained the specificity envisioned by KRS 61.880(1) and KRS 61.872(5).
With the exception of these procedural errors, no violation occurred. Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. Of particular relevance here, this office has long held "that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See, e.g., 93-ORD-50; OAG 90-101; OAG 85-51; OAG 81-333; OAG 76-375. In 02-ORD-165, the Attorney General recognized that the Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." Id., p. 4, quoting 96-ORD-251.
Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. In sum, the District is not statutorily required to honor a request which is properly characterized as a request for information such as that portion of Mr. Neidhardt's request which he properly characterizes as "questions." However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). Echoing this view, the Attorney General has consistently held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5.
That being said, the District did not violate the Act in declining to provide Mr. Neidhardt with copies of documents which might have been responsive to his request because Mr. Bryan did not "precisely describe" those records per KRS 61.872(3)(b). In 99-ORD-63, for example, this office was asked to determine whether the Breathitt County Clerk had violated the Act in refusing to honor a request for "any and all coal leases" containing specified name variations. Although the Clerk erred in failing to cite the applicable statutory exception, this office affirmed his disposition of the request since the requester had not satisfied the requirements of KRS 61.872(3)(b), and was therefore not entitled to receive copies of public records by mail. Id., p. 3. Such is the case here. Pursuant to KRS 61.872(3)(b):
(1) 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 sum, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Therefore, a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011.
Based upon the evidence of record, it appears that Mr. Neidhardt resides (and presumably also works) in Goshen, Kentucky; the District is also located in Goshen, Kentucky. Accordingly, Mr. Neidhardt does not satisfy the threshold requirement of KRS 61.872(3)(b), and the District may require him to conduct on-site inspection of records which are potentially responsive prior to furnishing copies. See 08-ORD-132. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) 6 merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. 7 In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in "definite, specific and unequivocal terms" the records he wishes to access by mail. Id. This Mr. Neidhardt has not done. However, Mr. Neidhardt is only required to satisfy the lesser standard of KRS 61.872(2) in order to conduct on-site inspection, which the District, as noted, is authorized to require prior to providing him with copies. 8
Even assuming that Mr. Neidhardt resided and/or worked in a different county, the District would still not be required to mail copies because the records are not "precisely described" nor can the records be properly characterized as "readily available. " This final requirement "permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, public agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant." 99-ORD-63, p. 3. As the Attorney General first observed in OAG 76-375, "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." Id., p. 4; 99-ORD-63. Consequently, this office has consistently held that if the records which the applicant requests to access by receipt of copies via mail "cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them." 99-ORD-63, pp. 3-4. Under such circumstances, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. " 9 Id., p. 4.
As in 99-ORD-63, the requester has failed to describe the records he wishes to access by receipt of copies through the mail in "definite, specific, and unequivocal" terms, and, therefore, fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not "precisely described," the records cannot accurately be characterized as "readily available" within the District. Accordingly, the District may require Mr. Neidhardt to conduct an on-site inspection of the records prior to furnishing him with copies. Where a requester cannot identify the records sought with precision, or wishes to extract information that has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency . . . ." OAG 76-375, p. 3.
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 Mr. Neidhardt also indicated that he did not receive his "last reimbursement check" and requested that Mr. Schoenbaechler "please see what [he] could do about it" and "send [him] the check as soon as possible." Although Mr. Schoenbaechler failed to address Mr. Neidhardt's inquiry regarding his check, which Mr. Neidhardt later noted in his reply, this issue is beyond our scope of review under KRS 61.880(2)(a).
2 This office reminds the District that "public agencies are not required to compile information to satisfy . . . a request, . . . [but] agencies are required to make available for inspection, during normal office hours , records that might yield the information sought." 97-ORD-16, p. 4 (emphasis added). Pursuant to KRS 61.876(1), the District may adopt rules which conform to the Open Records Act in order to protect records, and to prevent disruption of its essential functions; however, "[u]nreasonable restrictions upon inspection may not be imposed." OAG 89-91, p. 4. This office has consistently recognized that attempts to limit the period of time during which a requester may exercise his right of inspection place "an unreasonable burden and illegal restriction" upon his right of access. 02-ORD-094, p. 4. Absent evidence to the contrary, this office must assume that regular business hours last until after 3:00 p.m. and include Monday-Friday.
3 Public agencies cannot produce nonexistent records for inspection or copying, nor must public agencies "prove a negative" in order to refute a claim that certain records exist under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). On this issue, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling; a copy of each decision is attached hereto and incorporated by reference.
4 KRS 61.874(1) authorizes the District to require advance payment of a "reasonable" copying fee. Both the courts and this office have recognized that a fee of ten cents per copy is "reasonable" within the meaning of KRS 61.874(3). Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); 01-ORD-36.
5 02-ORD-165, p. 3.
6 In relevant part, KRS 61.872(2) provides that "[a]ny 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."
7 "A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963)." Id.
8 In Commonwealth v. Chestnut, Ky., 255 S.W.3d 655, 661 (2008), the Kentucky Supreme Court observed that in contrast to KRS 61.872(3)(b) "nothing in KRS 61.872(2) contains any sort of particularity requirement." Id. at 661. Declining to "add a particularity requirement where none exists," the Court held that a request is adequately specific if the description would enable "a reasonable person to ascertain the nature and scope of . . . the request." Id . Because Mr. Neidhardt "likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . that he had never seen[,]" the District is required to provide him with an opportunity to conduct on-site inspection.
9 In 97-ORD-46, the Attorney General noted that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." Id., p. 5. The District has done this, albeit minimally.