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 the City of Hurstbourne subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 when it conditioned Jose Magana's right to inspect residential complaints and related records, submitted to the city from January 1, 1995 to the present, on prepayment for copies of these records in the amount of $ 170.00. It is the decision of this office that 97-ORD-12, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. At page 2 of 97-ORD-12, the Attorney General recognized that "the decision whether to conduct an on-site inspection of records rests with [the requester] ." Contrary to the city's stated position, Mr. Magana expressed a clear preference for on-site inspection of the records he requested, and the city was obligated to honor that request.
In his October 18, 2010, letter to the "City Manager and/or Custodian of Records," Mr. Magana requested "access to the City of Hurstbourne public records, identified herein, for the purpose of inspection. " The records to which he requested access were identified as:
. Any and all residential complaints received by the City of Hurstbourne and/or any of its officials for the period January 1, 1995 to the present, including but not limited to violations of covenants, City of Hurstbourne, Louisville Metro Government, and Commonwealth of Kentucky, laws, codes, ordinances, and regulations.
. In addition to complaints from individuals and/or entities, the request covers any records reflecting similar enforcement actions taken unilaterally by City officials.
. Records should include and reflect documentation of the complaints, actions taken by City officials, referrals for actions to other governmental agencies and entities, and resolution of each complaint.
"In lieu of such inspection, " Mr. Magana continued, "you can mail copies of the records to me or my personal representative (s) by telephonic agreement."
On October 20, 2010, the city notified Mr. Magana that because "[t]he volume of documents requested is quite large," staff resources limited, and review of final records release postponed by the absence of the city attorney in the last week of the month, the requested records would be available "not later than November 5, 2010." In closing, the city advised him that he would be contacted when the documents were "ready for pick up" and that he must pay "10 cents per copy charge at that time." Mr. Magana immediately phoned the city "to have them stop making copies as that is not what [his] letter instructed." He then went to City Hall where he was permitted to view the stacks of records, but not the records themselves, and where he noted the absence of posted rules and regulations governing access to the city's records.
On November 2, 2010, the city notified Mr. Magana that "[t]he city has available 1,700 copies at .10 per copy; ready for [him] to pick up at the City Hall after payment of the sum of $ 170.00." The city indicated that additional boxes containing "several more thousand pages of documents" responsive to his request, but not copied, were available for his review. Mr. Magana and the city subsequently exchanged a series of letters in which they debated his monetary obligation, culminating in a January 14, 2011, letter from the city attorney advising him that "the law is clear that those who order copies through an Open Records request have to pay 10 cents per page." In a final effort to resolve the dispute, Mr. Magana phoned City Hall on January 18, 2011, to determine if the mayor had been consulted in this matter and the city's position had changed. The city manager responded to Mr. Magana by email on January 19, 2011, advising him that he conducted the search of some 15 years of records himself, since the city's two part-time employees "are . . . very busy," and "chose the option of making copies following [Mr. Magana's] written instruction."
On appeal, Mr. Magana contests the city's position, asserting that he "requested access to the City of Hurstbourne public records for the purpose of inspection and asked that arrangements be made telephonically to [him or his] personal representative. " (Emphasis in original.) He also questions the volume of records implicated by his request, given his specific focus on residential complaints and their resolution, the delays associated with fulfilling his request, and the city's failure to post rules and regulations governing access to Hurstbourne's public records. In supplemental correspondence directed to this office, the city responds that it simply did what Mr. Magana wanted, "but he does not want to pay for the copies." The city asks that this office "keep in mind the extremely broad nature of his request. Any document dealing with complaints of any kind, for the last 15 years." The city misstates Mr. Magana's position.
In a line of decisions issued by this office, the Attorney General has recognized that the "public has an absolute right to conduct on-site inspection of public records. " 98-ORD-69, p. 3. "This is not," we have consistently maintained, "a courtesy extended to the public . . . subject to the terms and conditions dictated by the . . . public agency" but a right that finds ample support in the Open Records Act and decisions construing it. Id. KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." (Emphasis added.) Subsection (2) of that provision states that "[a]ny person shall have the right to inspect public records. " (Emphasis added.) Finally, KRS 61.874(1) provides that "upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof. . . . " 2
In interpreting these provisions, from 1976 to the present, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. These decisions are summarized in 97-ORD-12. There, we reaffirmed the principle that the public agency does not have authority to prescribe the method by which access to public records is provided. It is that decision, and the authorities cited therein, which govern this appeal. At page 3 of 97-ORD-12, we held:
As in OAG 81-198, [the applicant's] request that he be permitted to exercise his right to inspect the files is not a "demand on [the] agency which is beyond the scope of the Open Records Law." Contrary to the Cabinet's apparent belief, and subject to the provision that the agency may adopt rules and regulations in conformity with the Open Records Act to provide full access to public records, to protect public records from damage and disorganization, and to prevent excessive disruption of its essential functions, the decision whether to conduct an on-site inspection of the records rests with [the applicant]. KRS 61.876(1) . "Unreasonable restrictions upon inspection may not be imposed." OAG 89-81, p. 4.
Lest there be any lingering doubt, the Attorney General emphatically stated, in closing, "we believe that the Open Records Act does, with limited exception, 3 give the applicant . . . the authority to prescribe the method of records access." 97-ORD-12, p. 4 (emphasis in original); see also, 97-ORD-166; 97-ORD-8; 97-ORD-6; 92-ORD-1439; OAG 89-81; OAG 89-76; OAG 81-198.
Mr. Magana made clear his desire to "access" the records identified in his request "for the purpose of inspection. " He agreed, in the alternative and after "telephonic arrangement," to the receipt of copies in lieu of inspection. Upon receipt of the city's response indicating that copying was underway and that he would be charged accordingly, Mr. Magana immediately phoned the city to advise them to cease copying inasmuch as this was not his stated preference. As evidenced by the city manager's January 19 email to Mr. Magana, the city labored under the erroneous belief that discretion rested with it to "choose the option of making copies," and, having done so, exacerbated the error by demanding payment for those copies. 4 A closer review of the request would have revealed that Mr. Magana wished to inspect a significantly smaller number of records than believed. 5 Having failed to do so, the city must bear the cost of its error. Although the city did not violate the Open Records Act in denying Mr. Magana's request, within the meaning of KRS 61.880(2), it subverted the intent of the Act short of denial of inspection, within the meaning of KRS 61.880(4), by refusing to afford him access to the records until he paid for copies he did not request.
The city did, however, violate the Act by failing to adopt and post rules and regulations governing access to its records as required by KRS 61.876(1) and (2). Mr. Magana identifies this omission in his letter of appeal, and the city does not refute it. KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
Like the requirement that the agency honor a request to conduct on-site inspection, the duty to adopt and post these rules and regulations is "not a courtesy extended to the public" but a statutory requirement. The city should make immediate arrangements to correct this error and may find assistance in doing so by referring to materials located at page 6 of "Your Duty Under the Law," http://ag.ky.gov/civil/orom.
Additionally, the city violated the Act by failing to afford Mr. Magana access to the requested records in a timely fashion. Mr. Magana submitted his request on October 18, 2010, and was advised that the request would be "fulfilled not later than November 5, 2010," noting that the city attorney would be "out of town the last week of the month" and therefore unavailable to "review the final records release." This response was deficient. KRS 61.880(1) contemplates records access within three business days of receipt of the records request. The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
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. " The city's response was deficient insofar as it did not contain a detailed explanation of the cause for delay. Its statement that the city attorney would be unavailable to "review the final record release" constituted less than a detailed explanation of the cause for delay. In addition, the statement was legally unsupportable given the long recognized view that although a public agency may wish to process open records requests through agency counsel, in the interest of uniformity and adherence to the law, the agency cannot do so at the expense of timely access to public records. See, e.g., 93-ORD-135 (holding that a review policy that occasions delays in agency response is problematic). Given the fact that the records to which Mr. Magana requested access were located and copied by October 21, when he was permitted "to view the stacks of copies," we conclude that the city violated the Open Records Act by failing to afford him timely access to those records.
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) 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.
2 Prior to July 1992, inspection of public records was a precondition to receipt of copies. Whatever the practical difficulties associated with inspection might be, public agencies could require applicants to come to their offices to conduct an onsite review of the records requested in advance of receiving copies. The 1992 amendments to the Open Records Act eliminated this requirement, except when the applicant resides, or has his principal place of business, in the county in which the public records are located. The legislature did not, however, eliminate the right of the applicant to assert his right to inspect public records before, or as an alternative to, obtaining copies. The relevant language in KRS 61.872(1) and (2), as well as KRS 61.874(1), was not altered. The Open Records Act underwent further refinement in 1994, but those amendments are not relevant to the present discussion.
3 If the applicant resides or works in the county where the records are maintained, the public agency is not required to honor a request for copies until the applicant has inspected the records. In this case, the applicant can be required to inspect records, prior to receiving copies, even though he requested access to records by receiving copies.
4 We note that the city criticizes Mr. Magana's request as "extremely broad in nature, . . . dealing with complaints of any kind for the last 15 years." If this were, in fact, the case, the city could have properly insisted that he conduct an on-site inspection of records that were neither "precisely described" nor "readily available within the agency." KRS 61.872(3)(b). Instead, the city located and copied the records within three business days of the request.
5 Mr. Magana asked to inspect "residential complaints" including, but not limited to, "violations of covenants, . . . laws, codes, ordinances, and regulations, " actions taken by the city in relation thereto, and enforcement actions taken by the city unilaterally, from January 1, 1995, to the present. He did not ask for "complaints of any kind for the last 15 years." Proper records management practices would have reduced the number of extant complaints to two years worth inasmuch as such records may properly be destroyed two years after resolution pursuant to Local Governments General Records Retention Schedule, Series L4965. These schedules are developed by the Kentucky Archives and Records Commission pursuant to KRS 171.530 and promulgated into regulation at 725 KAR 1:061.