Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Lexington-Fayette Urban County Government violated the Open Records Act in denying Sally Wasielewski's August 12, 2010, request to "inspect and copy all LFUCG and LPD ABC enforcement actions in the 900 block of Winchester Road Lexington, from March 1, 2010, to July 1, 2010." We believe that the analysis found in 10-ORD-189, a copy of which is attached hereto and incorporated by reference, governs this appeal except to the extent that LFUCG denied Ms. Wasielewski's request rather than leaving the door ajar for a subsequent request framed with greater specificity. Here, as in 10-ORD-189, Ms. Wasielewski's request was "adequate for a reasonable person to ascertain its nature and scope," Commonwealth v. Chestnut, 250 S.W.3d 655, 66 (Ky. 2008), and greater specificity should not have been expected or demanded.
In an August 19 response, LFUCG Division of Police Records Custodian Aaron Kidd characterized Ms. Wasielewski's request as a "blanket request." He indicated that he could not "ascertain the nature and scope" of her request "because of [her] term any and all related to, 'All LFUCG and LPD ABC Enforcement Actions in the 900 block of Winchester Rd, Lexington, from March 1, 2010, to July 1, 2010, regardless of the final outcome of the action.'" He asserted that compliance with her request would unduly burden "the public agency. "
We disagree. Ms. Wasielewski did not use the term "any and all." Even if she had done so, her request would not be fatally flawed insofar as it was limited as to time, place, and subject. On appeal, LFUCG does not focus on the phrase "any and all," apparently acknowledging that the phrase does not appear anywhere in her request. Instead, "the public agency" focuses on her use of the modifier "LFUCG" along with the modifier "LPD" in relation to the phrase "ABC enforcement actions in the 900 block of Winchester Road . . . ." Given the language and the context of the request, we believe that a reasonable person could ascertain its nature and scope: Ms. Wasielewski asked to inspect and copy ABC enforcement actions in the 900 block of Winchester Road conducted by LFUCG's Division of Police from March 1, 2010, to July 1, 2010. This is confirmed by the fact that Ms. Wasielewski also requested "a list of all ABC license holders for all businesses in the 900 block of Winchester Road" in the same letter.
On appeal, LFUCG objects to the misdirection of her request to the Department of Law rather than Officer Kidd. If her request was indeed misdirected, or legitimately required greater specificity, the Department of Law should have communicated this information to Ms. Wasielewski. Instead, the Department treated her request as a request to "the public agency, " forwarded it to Officer Kidd who then elected to add the term "any and all" to her request and denied it on that basis. Upon submission of her appeal, the Department of Law asserted its "separateness" from the Division of Police to bolster its argument that the enforcement actions she sought were not ABC enforcement actions only but all LFUCG enforcement actions. 1 Were there legitimate confusion as to the nature and scope of her request, the public agency should have left the door ajar by requesting clarification rather than unnecessarily delaying access. LFUCG's position is unsupportable.
We urge LFUCG to review 10-ORD-189 to insure that it applies the appropriate standard for determining if a request for public records is adequate under the rule announced in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008).
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.
Sally WasielewskiAaron KiddMichael R. Sanner
Footnotes
Footnotes
1 We will not address the Department of Law's argument that Ms. Wasielewski is not entitled to its litigation files in ABC enforcement actions. These are not the records she requested. We question, however, the assertion that all documents in a public agency's litigation files are excluded from public inspection by the attorney client privilege and work product doctrine.
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