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 although her original response to Ronald L. Cook's August 30, 2010, nine-part broadly worded request for records relating to former Deputy Judge/Executive Monica Robinson was deficient, Bullitt County Judge/Executive Melanie J. Roberts corrected these deficiencies in her supplemental response to Mr. Cook's appeal by inviting him to conduct an on-site examination of any files in her office. Accordingly, we affirm Judge Roberts' handling of Mr. Cook's request.
That request encompassed, for a six to seven month period in 2007, all records Ms. Robinson signed, all emails from Monica Robinson "to anyone," all records from the County Judge to Ms. Robinson or Amanda Spalding, all records from Ms. Robinson or Ms. Spalding to the County Judge, all records referencing Ms. Robinson or Ms. Spalding, Ms. Robinson's personnel file, all checks issued to Ms. Robinson, records from Ms. Robinson to the County Judge or County Treasurer "for payment of services," and all time cards to the County Judge or County Treasurer.
The County Judge initially denied each of these requests explaining that she was not custodian of records referencing Ms. Robinson and Ms. Spalding, checks issued to Ms. Robinson, records documenting payment for Ms. Robinson's services, and Ms. Robinson's time cards. 1 With respect to the remaining requests, Judge Roberts advised:
This request is denied due to the fact that it is overbroad and unduly burdensome. This office does not maintain records (i.e. letters, facsimiles, emails) by name of employee and has no way to gather said requests in a reasonable fashion. The request fails to state with specificity the records being sought. Instead, the request is non-specific and only seeks general information.
In closing, Judge Roberts indicated that her office would comply with Mr. Cook's request if he "state[d] specifically what records [he] desire[d] . . . ." Shortly thereafter, he initiated this appeal challenging the County Judge's refusal to allow him to inspect or obtain copies of the records.
In supplemental correspondence, Judge Roberts reiterated that many of Mr. Cook's requests were overly broad, noting that "if he had requested precise records, [her] office would have been more than happy to supply them." She invited Mr. Cook "to come to [her] office and examine any files he would like to" in order to locate the records he seeks. Mr. Cook was copied on, and apparently received, this response, but has taken no further steps to resolve this matter such as submitting an amended request or attempting to conduct an on-site inspection to locate responsive records. Because Mr. Cook did not "precisely describe[]" the records he wished to inspect and those records were not "readily available within the public agency, " we find that Judge Roberts discharged her statutory duty by inviting Mr. Cook to conduct an on-site inspection for records responsive to his request from among the records maintained in her office, notwithstanding the fact that he apparently has his principal place of business and resides outside the county in which the records are located. KRS 61.872(3)(b).
Although Judge Roberts did not provide clear and convincing evidence of the unreasonable burden associated with locating and retrieving records responsive to Mr. Cook's request in her original response, she mitigated this error in her supplemental response by inviting him to conduct an on-site inspection of the records in her office. This comports with the position that persons wishing to access broad categories of records that have not already been compiled "may make a fishing expedition through public records on their own time and under the safeguards of the public agency" to locate those records. 98-ORD-17, p. 10, citing OAG 76-375; see also OAG 89-61 and 97-ORD-6. 2 Mr. Cook's request is so broadly framed as to encompass everything from official correspondence to a lunch invitation or birthday list. The Open Records Act addresses the agency's duty in responding to requests of this nature by reverse inference at KRS 61.872(3)(a) and (b) which provides:
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.
The Open Records Act thus contemplates records access 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. A requester who 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. 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 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; 97-ORD-46; 03-ORD-67.
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" 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.
Commonwealth v. Chestnut 250 S.W.3d 655, 661 (Ky. 2008). 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). 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. 97-ORD-46, p. 3; 03-ORD-067.
Mr. Cook did not precisely describe an official memorandum Ms. Robinson signed, an email Ms. Robinson sent, or a birthday list containing Ms. Robinson's name. Instead, he requested all documentation, regardless of physical form or characteristics, created by or for, sent to or received by, or referencing Monica Robinson and/or Amanda Spalding. His request was imprecise, and the records requested were not readily available within the County Judge's office. Accordingly, we find that Judge Roberts discharged her duties under the Open Records Act by inviting him to conduct an on-site inspection of the records in her office to locate those records that are responsive to his request. If Mr. Cook wishes to avail himself of this opportunity, he must be permitted to inspect Judge Roberts' records in suitable facilities in her office during regular office hours under only those conditions necessary to protect the records from damage and disorganization and to prevent excessive disruption of her office's essential functions. KRS 61.872(2) and (3); KRS 61.876(1).
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.
Ronald L. CookMelanie J. RobertsWalter A. Sholar
Footnotes
Footnotes
1 Pursuant to KRS 61.872(4), Judge Roberts is obligated to furnish Mr. Cook with the name and location of the official custodian of these records.
2 Because the records to which Mr. Cook requests access are three years old, the applicable retention periods for some of the records may have expired and the records destroyed in the normal course of business. County Judge/Executive Records Retention Schedule, http://www.kdla.ky.gov/recmanagement/schedule/CountyJudgeExecutiveRecor…; Local Governments General Records Retention Schedule, http://www.kdla.ky.gov/recmanagement/schedules/LocalGovernmentGeneralRe….