Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Carrollton violated provisions of KRS 61.870 to 61.884 in the disposition of Salome Frances Spenneberg Kist's February 23, 2011, request for copies of "all records . . . [relating to] 940 Polk Street," from 1957 to the present, submitted to Mayor Gene McMurray. We reach the same conclusion with respect to Ms. Kist's request for the same records, along with records relating to 938 Polk Street and 942 Polk Street for designated periods, submitted to the city's building inspector, Art Zoek, on the same day. 1 Having received no response to her requests, Ms. Kist initiated this appeal.
Shortly thereafter, the Attorney General issued written notification of Ms. Kist's appeal to Mayor McMurray, Mr. Zoek, and City Attorney Nicholas A. Marsh. We received two responses to our notification, the first a copy of a response directed to Ms. Kist from City Clerk/Treasurer Becky H. Pyles and the second directed to this office from City Attorney Marsh. By letter dated March 18, 2011, Ms. Pyle advised Ms. Kist that she must "fill out a formal request form," explaining that "this form must have specified records listed on our form #PR02-01." Ms. Pyle provided Ms. Kist with a copy of the City of Carrollton Public Records Inspection Request Form.
In a letter bearing the same date, Mr. Marsh objected to this office's suggestion that the city denied Ms. Kist's request, indicating that "there never was made a request upon the official records custodian, " who he identified as Ms. Pyle. Continuing, he stated that "it [was his] understanding that the city does not possess the records that Ms. Kist is seeking." Noting that records dating back to 1957 would have been destroyed pursuant to applicable records retention schedules, and that neither he, Mr. Zoek, nor Ms. Pyle were aware of records specifically mentioning these properties, he nevertheless extended an invitation to Ms. Kist to conduct her own onsite inspection of city records to locate those records she seeks after she "contact[s] Ms. Pyle, fill [s] out the necessary forms and sets up an appointment so that Ms. Pyle can have the records she desires to see readily available for her inspection. " We find the city's disposition of Ms. Kist's requests deficient for three reasons.
The first of these deficiencies arises from the city's failure to respond to Ms. Kist's requests in writing, and within three business days, in contravention of KRS 61.880(1). That statute 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Amplifying on this view, the Attorney General has opined that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 3. A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act - much less . . . amount[] to substantial compliance." Id. The failure to respond in any fashion is particularly egregious and constitutes a violation of KRS 61.880(1).
In its response to Ms. Kist's appeal, the city does not deny receipt of her requests but argues that they were not directed to the city's official records custodian. This represents the second deficiency in the city's disposition of her requests. It was, in our view, incumbent on the recipients, Mayor McMurray and Mr. Zoek, to insure that the requests were forwarded to the official custodian for timely processing and written response, or at a minimum, to promptly notify Ms. Kist that they were not the custodians of the requested records and provide her with the name of the city's custodian of records. On this issue, we find that Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006) is controlling. There, the Kentucky Court of Appeals held that "delivery to the office of the [agency] was sufficient to trigger [the agency's] obligation," and that to require personal delivery to a particular public official "would be tantamount to encouraging our government officers to 'bury their heads in the sand' to public matters with which they are charged." Public agency inaction is not a viable option under the Open Records Act even if a request is misdirected. Having thus determined that its failure to respond constituted a violation of KRS 61.880(1), we urge the City of Carrollton to review the cited provision to insure that future responses conform with the requirements of the Open Records Act. Accord, 07-ORD-125; 09-OMD-132.
The third deficiency in the city's responses relates to the demand that Ms. Kist utilize its preprinted open records request form. "That hackneyed canard was bruited about and confounded long ago." Ex parte Farley, 570 S.W.2d 617 (Ky. 1978). The Open Records Act itself dispels any doubt as to the impropriety of this position. KRS 61.872(2) provides:
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.
In construing this provision, the Attorney General has recognized:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
94-ORD-101, p. 2. This position echoed an early open records opinion in which the Attorney General stated that "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 95-ORD-60 and 95-ORD-33. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information.
Moreover, at page 3 of 94-ORD-101, the Attorney General observed:
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.
Continuing, this office noted that the agency "violated the Open Records law when it ignored the application or request to inspect public records because it was not submitted on a particular form devised by the public agency, " and that the agency "was under a legal obligation to respond to the request within the statutorily mandated time frame . . . ." Id. at 3, 4.
Based on the cited authorities, we find that the City of Carrollton violated KRS 61.880(1) in failing to respond to Ms. Kist's requests because she did not comply with a city policy requiring the submission of an open records request on a preprinted form developed by the city. Her February 23 requests conformed, in all particulars, with the requirements found at KRS 61.872(2). It was therefore incumbent on the city to respond in writing, and within three business days, to that request, and its failure to do so constituted a violation of the Open Records Act. Accord, 04-ORD-242. It remains, therefore, for the city to conduct a search of existing public records for any records responsive to her requests. Until it has done so, its duties under the Open Records Act will not be fully discharged. We are not prepared to accept a claim of undue burden, such as that advanced by the city, in the absence of any evidence that a search has been undertaken or, at a minimum, some description of the magnitude of undertaking such a search. Accord, 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.
Distributed to:
Salome Frances Spenneberg KistArt ZoekGene McMurrayBecky H. PylesNicholas A. Marsh
Footnotes
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