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 St. Matthews violated the Kentucky Open Records Act in the disposition of Sam Connally's two December 2, 2011, requests, 1 the first being for "any and all records in electronic or print format, . . . created by or addressed to or from among any City official, City employee, or community member pertaining to Metro Men LLC, Metro Men Fashion, Bob Warner, Robert L. Warner, Dr. Boone, Dr. Taffel, 'Dr. Boone's building,' 'the old flower shop,' 'the shop at the corner of Westport Rd. and St. Matthews Ave.' or the 'business next to the Dental office' for the period from November 2, 2011 through the present." Mr. Connally also separately requested "any and all citations issued by the Code Enforcement Officer for violation of building code or sign code ordinances or any real estate or business related regulations of the [City] issued to any business or entity from August 1, 2011 through the present." As "an additional and separate" request also made in the second letter, he asked the City to provide copies of "daily work records, log sheets, personal notes, e-mails or correspondence to or from the [City] and to or from Jack Ruf, Inspections & Permitting Officer, regarding building code and sign code compliance, expressly including but not limited to complaints received, voice messages, emails, internal memoranda, investigation complaints, investigation notices to businesses or corporate entities within the [City], related in any manner to the permitting of signs; the permitting, display or removal of temporary banners, pennants, or flags; or compliance with building code or sign code ordinances or regulations . . ." from August 1, 2011 through the present.
In failing to either issue a written response and provide Mr. Connally with access to all existing nonexempt documents responsive to his written requests within three business days per KRS 61.880(1), or properly invoke KRS 61.872(5) in writing, if applicable, by citing that provision and providing a detailed explanation of the cause for delay, as well as the "place, time, and earliest date on which" the documents would be available for inspection, the City violated the Open Records Act from a procedural standpoint. Neither the press of business nor the absence of the official custodian (or someone acting on his/her behalf) justifies a delay in providing access to public records. 02-ORD-165, p. 3. Because Mr. Connally resides and works in the county where the records are located, KRS 61.872(3)(b) authorizes the City to require inspection prior to providing the requested copies assuming that suitable facilities are provided.
In his June 12, 2012, letter of appeal, Mr. Warner summarized the facts which, in relevant part, are undisputed, as follows:
The City failed to acknowledge receipt of or respond to the Open Records requests from December 2 through December 21, 2011. Mr. Connally followed up with Susan Clark, Clerk of City of St. Matthews by email on December 12 & 14 and finally spoke with Ms. Clark by telephone on December 21, during which Ms. Clark verbally acknowledged receipt of the Open Records Requests. Ms. Clark indicated that she had been instructed not to respond to the Open Records Requests (though this is within the statutory scope of her role as City Clerk), but rather to refer the requests to the City Attorney, Mr. Foster Haunz. [Copies of referenced e-mail correspondence were included with his letter.]
In early January, I asked a local attorney to contact Mr. Haunz on my behalf to ascertain when the City would respond to my Open Records Request. Mr. Ted Shouse, Esq., reported on January 19 that Mr. Haunz had suggested that Mr. Connally or me, together with Mr. Shouse, as our attorney, "meet in person at City Hall to review public records and that the [City] would then produce such records as we were requesting. " Mr. Haunz['s] telephone call with my attorney on January 19, 2012 was the first response of any kind on the part of the City to the Open Records Requests of December 2, 2011 -- but then consisted only of an invitation for an on-site inspection of those records.
In response to said invitation by Mr. Haunz, he noted, Mr. Connally "wrote to Mr. Haunz on January 19, 2012," noting that "such a meeting would place an unreasonable personal and financial burden on me as the requesting person to bring about simple compliance with the Open Records Act. " On January 24, 2012, "over seven weeks following receipt of the original Open Records Requests on December 2, 2011," Mr. Warner observed, "Mr. Haunz replied to Mr. Connally in writing, indicating that 'The records you are requesting are located on desks, in file cabinets, in storage boxes and the like. Your designation of the records you are requesting is less than precise making it impossible for the City to identify the requested records without your on-site inspection first.'" Rather than produce said records, Mr. Warner noted, Mr. Haunz offered in his letter to afford Mr. Connally "the opportunity to make an inspection [on-site] of any and all records contained in (his) request, during normal business hours.'" 2
Mr. Warner believes that Mr. Haunz's response is "pretextual in nature and thwarts the purpose of the Open Records Act" because the records being sought were described with adequate specificity that "City Staff were expressly aware of the nature, scope, and existence of records that would be responsive to the requests based on an in-person conversation at City Hall between Mr. Connally and Mayor Bernard Bowling and Sign Code Officer Jack Ruf, on November 1, 2011 regarding sign code compliance." Further, with regard to Mr. Connally's second request Mr. Warner asserted the records "were readily available in the files of the Sign Code Officer [or the Mayor] under the control of a single person [or limited number of persons] who would immediately know of both the existence and whereabouts of" the records. Even if Mr. Haunz's representation as to how the records are distributed in City Hall is accurate, Mr. Warner believes the offer to allow inspection of the records in this context is "disingenuous and mere pretext to discourage me from actually obtaining copies of the requested public records. " 3
Upon receiving notification of Mr. Warner's appeal from this office, Mr. Haunz unpersuasively asserted that he does not have "standing to Appeal." [See footnote 1.] Mr. Haunz then explained that the City requires that "all records request[s] be routed through the attorney for the City [Mr. Haunz]." Because the City Clerk assumed that position "only 4 months prior to the request and had no prior municipal experience," the City implemented this policy for processing requests. In support of Mr. Haunz's position that "[d]elay was caused [by] circumstances beyond the City's control," he then relied upon personal health issues that necessitated his absence from the office (surgery on November 29, 2011, and rehabilitation beginning on December 3, 2011) and technical issues that resulted from someone tampering with his computer while he was vacationing in Maui during early November 2011, which left him "unable to send or receive e-mails for several weeks." Mr. Haunz further asserted that he attempted to reach Mr. Connally "several times" in December and January, as "documented by a letter sent to the City Clerk dated December 30, 2011," and left messages at his residence "[o]n more than one occasion." According to Mr. Haunz, he ultimately received a telephone call from Mr. Shouse and they had a "very friendly conversation" during which Mr. Haunz advised that Mr. Connally was welcome to come to City Hall "with Shouse if he wanted to come, and myself to view and review the records Connally wanted, make a place available for inspection, and make copies of any records he wanted." When Mr. Haunz did not hear back, he issued the January 24 written response to which Mr. Warner referred. Implicitly relying upon KRS 61.872(3)(b), Mr. Haunz noted that Mr. Warner and Mr. Connally "are both residents of Jefferson County" and the "City is located in the same county." In the event his other arguments were rejected, Mr. Haunz conceded "that there may have been a technical violation of the Open Records Act arising out of the medical condition of the person designated for answering."
In reply, Mr. Connally submitted a detailed letter and multiple attachments, disputing each of Mr. Haunz's arguments in turn and his characterization of certain events. Specifically, Mr. Connally referenced the City's disposition of a November 1, 2011, request as evidence that Mr. Haunz's review of the requests at issue was "not routine." He also noted that during a telephone conversation with the City Clerk on December 21, 2011, she advised that she had been "'instructed' not to acknowledge" the request(s) and to "'refer the entire matter' to the City Attorney," which Mr. Connally understood to refer "to the broader, underlying potential for a dispute" between Mr. Warner and Mr. Connally and the City regarding allegedly selective enforcement of the City's Sign Code Ordinance in a manner adverse to their business. Mr. Connally disputed that Mr. Haunz's personal illness precluded the City from acknowledging receipt of his request in response to his e-mails of December 12, 14, and 21, or indicating that additional time was needed to actually produce the records. He further asserted that any disruption of Mr. Haunz's e-mail service did not impede his ability to respond in a more timely fashion, as evidenced by his December 30 e-mail communication with the City Clerk, though Mr. Haunz waited another month until hearing from legal counsel and receiving a lengthy e-mail from Mr. Connally before finally issuing a written response on January 24. Mr. Connally then adamantly refuted Mr. Haunz's assertion that he settled the matter with Mr. Shouse, characterizing it as "not only a misstatement of fact," but "an intentional misrepresentation of facts conveyed . . . in an attempt to obfuscate the issues further." His January 19 e-mail "conveyed unequivocally" that he did not perceive the matter as having been settled as he specifically objected to inspecting the records "while being accompanied by an attorney." In closing, Mr. Connally stated his belief that Mr. Haunz only "adopts the position that a citizen living or working in Jefferson County must physically come to City Hall and conduct inspection . . . when there is an underlying dispute between the requestor and the City."
In subsequent correspondence, Mr. Haunz recited his educational background and experience representing cities in addition to expressly denying that he made Mr. Connally's right of inspection contingent on the presence of his attorney. Mr. Connally replied at length, ultimately summarizing the issues remaining in dispute as whether Mr. Haunz's e-mail disruption or personal health issues constituted factors beyond the City's control and whether the City intended to convey an "invitation" for Mr. Shouse to accompany Mr. Connally/Mr. Warner for purposes of conducting on-site inspection or intended to establish that as a precondition to exercising the right of inspection. "[T]his office is not equipped to resolve [a] factual dispute [when presented with conflicting factual narratives]. 09-ORD-120, p. 4(citation omitted). 4 However, the factors relied upon by the City to delay access, namely, the inexperience of the City Clerk, and the illness and technical difficulties of Mr. Haunz, while perhaps beyond its control, are not legally relevant.
Inasmuch as the City has not invoked any exceptions or expressly denied access, the Attorney General has no basis upon which to find that a substantive violation of the Act was committed; however, the undisputed facts presented conclusively establish that Mr. Connally was denied timely access in clear violation of the spirit and letter of the Act. Contrary to the City's position, the Open Records Act, like its counterpart, the Open Meetings Act, "does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely technical." 00-OMD-114, p. 3. Rather, this office has long recognized that 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. 5.
Public agencies, including the City, must comply with substantive and procedural requirements of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 5 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency " shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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. " (Emphasis added.) Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6. "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). As the Attorney General has frequently noted, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Accordingly, in failing to issue a written response of any kind to Mr. Connally's December 2, 2011, requests within three business days of receipt (let alone for several weeks) and provide any existing responsive documents for on-site inspection, the City violated KRS 61.880(1) as it did not invoke KRS 61.872(5) nor did Mr. Haunz's absence or inability to communicate via e-mail mitigate this error. 6 In the absence of a legitimate detailed explanation of the cause for the delay in providing access, the Attorney General must conclude that Mr. Connally was not afforded "timely access."
Noticeably absent from the City's belated written response is any reference to KRS 61.872(5); also lacking is a detailed explanation of the cause for delay. This office sees "nothing wrong with the [City's apparent] policy of processing open records requests through its legal department [assuming, of course, that policy is not being applied in a disparate manner]. In our view, this policy ensures uniformity and adherence to the law. 93-ORD-134. However, care must be taken that such a policy does not interfere with the timely processing of an open records request [as it did here]." 00-ORD-166, p. 4 (emphasis added). None of the permissible reasons for delay identified at KRS 61.872(5), the only exception to KRS 61.880(1), appear to apply here or have been asserted. It was incumbent on the City, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. In the event that the official records custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"); 09-ORD-191 (noting that Attorney General has "repeatedly stated that the three day period of limitation for agency response codified at KRS 61.880(1) cannot be extended to accommodate the schedules of agency staff"). "The 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, above , at 1041. See 08-ORD-006; 11-ORD-035. The City's assertion that any violation or delay was a "technical" violation excused by the illness of the City Attorney demonstrates a fundamental misconception of its procedural duties under the Open Records Act.
That said, the City did not violate the Act in declining to provide Mr. Connally with copies of documents which might have been responsive to his request per KRS 61.872(3)(b). Pursuant to KRS 61.872(3)(b):
(1) A person may inspect the public records:
In sum, the Open Records Act contemplates access to records "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. " 03-ORD-067, p. 4. Therefore, a requester that 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. Id. On the other hand, 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 the 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." Id., p. 5; 04-ORD-011.
It is undisputed that Mr. Connally (and Mr. Warner) resides in Jefferson County, Kentucky; the City is also located in Jefferson County. Accordingly, Mr. Connally cannot satisfy the threshold requirement of KRS 61.872(3)(b), and the City may require him to conduct on-site inspection of records which are potentially responsive prior to furnishing copies. See 08-ORD-132. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" 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. However, Mr. Connally was only required to satisfy the lesser standard of KRS 61.872(2) in order to conduct on-site inspection, which the City, as noted, is otherwise authorized to require prior to providing him with copies. 7 In order to ensure that Mr. Connally is able to conduct a meaningful review of the records, the City "must segregate only responsive records for [his] inspection. " 09-ORD-154, p. 6 (original emphasis)(agency was required to "immediately locate, retrieve, and make available for [requester's] inspection and/or copying" all responsive documents and it would "not suffice to set him loose in the [agency's] various records repositories to conduct his own fishing expedition"); 07-ORD-105 (noting that "commingling of requests and the volume of records produced precluded the requester from conducting her own meaningful review" ). Although Mr. Warner and Mr. Connally have arguably raised some valid concerns regarding the delayed invocation of KRS 61.872(3)(b), KRS 61.872(3) "recognizes no exception and we are not at liberty to read exceptions into the statute." 03-ORD-195, p. 5; 97-ORD-12. Our holding is, however, premised on the assumption that the City will provide suitable facilities, i.e. , not a hostile or intimidating environment, for inspection of the records and that no unreasonable or illegal restrictions will be imposed on access. See 10-ORD-213.
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:
Robert WarnerFoster L. HaunzSusan Ragains
Footnotes
Footnotes
1 On appeal, Robert Warner advised that Mr. Connally was acting on his behalf in submitting the December 2 requests. Noting that Mr. Warner stated this "over six months after the fact[,]" on appeal City Attorney Foster L. Haunz argued that Mr. Warner did not have standing to initiate the instant appeal given that Mr. Connally made both requests, to which Mr. Warner was "simply not a party," and "[n]either Connally nor Warner is a licensed attorney." Mr. Haunz further asked this office to "[i]magine what could happen" if someone other than a party "files an appeal ten years after a denial." This office has previously rejected each of these arguments for dismissal.
In 99-ORD-119 (In re: Laura M. Haara/City of St. Matthews Police Department), the Attorney General advised the Department and its counsel, Mr. Haunz, that "neither of the Department's procedural arguments" is meritorious. Id., p. 6. Inasmuch as the Open Records Act "contains no 'statute of limitations,'" the Attorney General held, "this appeal is not time barred. Inasmuch as the Open Records Law does not require that the 'real party in interest' pursue his complaint by appeal to the Attorney General, this appeal cannot be dismissed on the grounds that it was not initiated by the original requester. " Id. Further discussion is unwarranted.
2 Mr. Haunz further indicated to Mr. Connally that "you reside in Jefferson County, in the City of Indian Hills adjacent to St. Matthews, and have a business in the City. Your business is located just a few blocks from City Hall."
3 Mr. Connally quoted 01-ORD-75 (noting that "early opinions of this office urge public agencies to 'accommodate requesters whenever they can within the bounds of the efficient operation of their office' . . . 'To require the requester to appear in person at the office of the agency' when his request is narrowly framed and the records can be easily accessed, 'would not be more convenient to either party and would only inhibit the intended purposes of the'" Act) in support of his position that on-site inspection should not be required; however, the ultimate holding of that decision was that a public agency must comply with a request for copies of precisely described public records that are readily available (the subject of debate here) " if [the requester] resides, or has his principal place of business" outside of the county where the records are located. Id., p. 6 (emphasis added). If the requester "both resides and works in [the] County," (original emphasis) this office continued, "the [agency] may properly require on-site inspection as a precondition to furnishing him with copies, but may also" choose to accommodate him. Id. (emphasis added). The decision falls within the discretion of the agency in other words; however, it is axiomatic that the City must not exercise this discretion for the purpose of delaying or inhibiting access.
4 "In rendering a decision under the Open Records Act, the Attorney General is not concerned with 'heroes and villains'. . . . [but must] assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." 93-ORD-15, p. 6; 07-ORD-179, p. 7. This office is not empowered to conduct investigations, gather evidence, interview witnesses, etc. ; rather, KRS 61.880(2)(a) specifically requires the Attorney General to "review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See 09-ORD-186; 12-ORD-065. Accordingly, this office makes no finding regarding the actual motivation or credibility of either party, the actual content of Mr. Haunz's offer to Mr. Connally's legal counsel regarding inspection, etc.
5 See Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994) (Court recognized that "[o]ur analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request" as the "Legislature clearly intended to grant any member of the public as much right to access the information as the next."); 96-ORD-209 ("all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof"); 07-ORD-056.
6 Pursuant to KRS 61.872(5):
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.
7 In Commonwealth v. Chestnut, Ky., 255 S.W.3d 655, 661 (2008), the Kentucky Supreme Court observed that in contrast to KRS 61.872(3)(b) "nothing in KRS 61.872(2) contains any sort of particularity requirement." Id. at 661. Declining to "add a particularity requirement where none exists," the Court held that a request is adequately specific if the description would enable "a reasonable person to ascertain the nature and scope of . . . the request." Id.