Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Danville violated the Kentucky Open Records Act in partially denying Clay P. Moore's October 12, 2011, request for "one (1) copy of the revenue received by the City of Danville, by month for 2009, 2010, and 2011, to date, from commercial and residential sewer fees generated from the Mocks Creek Sewer Project" for "Northpoint [Training Center], Hunt Farm Subdivision (Jody Sharpe), and residential customers of Gwinn Island." Having received no response, Mr. Moore initiated this appeal by letter dated October 20, 2011. Upon receiving notification of Mr. Moore's appeal from this office, Danville City Clerk Donna Peek advised Mr. Moore, by letter dated October 31, 2011, that she was providing him with "a copy of all information available in the current computer system on Northpoint," and that "no records are available for Hunt farm (which is an undeveloped subdivision)[.]" 1 Citing 96-ORD-176 and KRS 61.878(1)(a), the City denied the remainder of Mr. Moore's request. Because any issues related to documents containing information related to Northpoint are moot per 40 KAR 1:030, Section 6, 2 and the City cannot produce nonexistent records for inspection or copying nor must a public agency such as the City "prove a negative" in order to refute a claim that certain records exist under governing case law, 3 our analysis focuses exclusively on whether the City erred in withholding the collective amount of revenue generated from sewer fees of residential customers of Gwinn Island on the basis of KRS 61.878(1)(a).
Before addressing the remaining substantive question presented, this office is compelled to note that the City committed a procedural violation of the Open Records Act in failing to either provide Mr. Moore with timely access to all existing responsive documents per KRS 61.880(1) or provide a detailed explanation of the cause for delaying access per KRS 61.872(5). As a public agency, the City is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for responding to requests made thereunder. 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. 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.
In applying this provision, the Attorney General has consistently observed:
"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). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the City's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. " OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein.
01-ORD-140, pp. 3-4 (emphasis added). As in 01-ORD-140, this office must conclude that in failing to issue a written response to Mr. Moore's October 12, 2011, request within three business days of receipt and provide him with access to any existing responsive documents, the City violated KRS 61.880(1) as it did not invoke KRS 61.872(5). In the absence of a legitimate detailed explanation of the cause for the delay in providing access, the Attorney General must conclude that Mr. Moore did not receive "timely access" to the records eventually provided on October 31, 2011.
Noticeably absent from the City's October 31 response is any reference to KRS 61.872(5); also lacking is any explanation of the cause for delay. On appeal the City does not address either deficiency and its response(s) violated the Act in this regard. "The procedural requirements of the Open Records Act, " the Attorney General has long observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." See, e.g., 10-ORD-057 and authorities cited therein. Further, "[t]he duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4. Any other interpretation of the Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia v. U.S. Department of Justice , above, at 1041. See 01-ORD-38 ("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. "); 10-ORD-201. Based upon the following, this office must conclude that the City's response was also substantively incorrect.
In 09-ORD-196 (In re: Clay P. Moore/City of Danville Water and Sewer District), this office was asked to decide whether the agency violated the Open Records Act in denying Mr. Moore's request for "'one (1) copy of the 2008 and 2009, by month, water bills, to include sewer and storm water fees, paid to the City of Danville by EMRMC [Ephriam McDowell Regional Medical Center], Centre College, and CKASC [Central Kentucky Ambulatory Surgery Center, LLC].'" Id., p. 1. The agency relied on KRS 61.878(1)(a) in denying access ""because those documents can be used to infer the personal lifestyle of a customer or suggest the competitive position of a commercial or industrial customer and would be an improper and unjustifiable invasion of the customers' privacy, ' as the Attorney General determined in 96-ORD-176." 09-ORD-196, pp. 1-2. Significantly, this office modified 96-ORD-176 and 96-ORD-237, a related decision issued shortly after 96-ORD-176, as "[b]oth decisions were erroneously postulated on the notion that equal privacy interests could be attributed to aggregate information contained in a water bill for a customer with multiple unidentified users and information contained in a water bill for a single residential user. "
Although the agency relied in good faith on 96-ORD-176, this office noted, the Attorney General concluded "that disclosing the requested aggregate information would not identify the water and sewer usage of specific individuals; accordingly, that information cannot properly be characterized as 'personal.'" 09-ORD-196, p. 2. In so doing, the Attorney General reasoned that "[t]he interest of the public in ensuring that the Department has, and fairly enforces a uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records." Id. Although Mr. Moore has requested generic, aggregate billing information of residential customers in this case, rather than for "multiple user entities," the critical fact is that he did not ask for information that would identify the residential customers or implicate their privacy interests.
Inasmuch as 09-ORD-196 fundamentally stands for the proposition that generic, aggregate information contained in such billing records, which does not "identify the water and sewer usage of specific individuals cannot be properly characterized as 'personal'," the reasoning contained therein is equally applicable on the facts presented. A copy of that decision is attached hereto and incorporated by reference. In 96-ORD-176, a copy of which is also enclosed, this office found that "customer billing records contain information which 'touches upon the personal features of private lives'." Id. (citation omitted). To the extent such information "'can be used to infer a particular lifestyle of a residential customer or suggest the competitive position of commercial and industrial customers, '" the Attorney General agreed that "it is not unreasonable to assume that [a public utility's] customers have at least some expectation of privacy in their billing records." 96-ORD-176, p. 2. Accordingly, this office concluded "that billing records contain information of a personal nature" and the "relevant public interest supporting disclosure" in that appeal "did not outweigh the privacy interests of individual customers in their billing records." Id., pp. 2-3. In so concluding, however, this office noted that the agency had indicated a willingness to provide "generic billing information without individual customer names" which could be used "to verify billing methodology and calculations." Id.
Our understanding is that Mr. Moore has requested nothing more and, if anything, has arguably requested less assuming that he is only seeking the revenue collectively generated from the fees of a specific group of residential customers. Release of "specific billing information, which identifies individual users and their individual water and sewer usage, " remains, in our view, "simply too invasive." Id., p. 3. As in 09-ORD-196, this office continues to ascribe to this view as it relates to specific billing information that would identify residential customers and reveal their personal habits, thereby implicating their privacy interests, "but modifies its position as it relates to aggregate information contained in billing records . . ." Id., p. 6.
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:
Clay P. MooreDonna PeekBernie HunstadH. Vincent Pennington, III
Footnotes
Footnotes
1 "As a preliminary matter," Ms. Peek advised Mr. Moore that the City "would deny your request because you did not request specific documents and instead requested a compilation of information." This office has long recognized that a public agency is not statutorily required to create a record or compile a list in order to comply with a request under the Act; however, in lieu of doing so a public agency must provide the requester with an opportunity to inspect existing non-exempt records which may contain the information being sought. See 09-ORD-145, pp. 8-9.
2 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." This office assumes, based upon the limited evidence presented, that the City provided Mr. Moore with any existing responsive documents.
3 Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). On this issue, 11-ORD-137 is controlling; a copy of that decision is attached hereto and incorporated by reference.