Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Spencer County Fiscal Court violated the Open Records Act in denying Lawrence Trageser's May 11, 2012, request for records "establishing the equipment hours, man hours, and materials purchased for . . . Jewel Park Road." Given the fact that Mr. Trageser had received ample notice of the identity of the agency's official custodian of records, we find that the fiscal court did not err in requiring him to submit his request to that individual. If, however, Mr. Trageser's right of access to the requested records was conditioned on the use of the fiscal court's preprinted request form, the fiscal court erred in imposing a requirement not found in the law. The first of these issues is the subject of 00-ORD-073 and 00-ORD-94. The second issue is the subject of 11-ORD-080. These open records decisions, copies of which are attached hereto and incorporated by reference, are dispositive of the appeal before us.
On May 11, 2012, Mr. Trageser hand-delivered an open records request, addressed to Spencer County Deputy Judge-Executive Karen Curtsinger, to Deputy Judge Curtsinger. The request was not submitted on the county's preprinted request form but satisfied the requirements of KRS 61.872(2). 1 The deputy judge asked Mr. Trageser whether he had filed his request with the county's designated records custodian, Spencer County Attorney Ruth Hollan. He neither confirmed nor denied that he had done so but advised Deputy Judge Curtsinger that "this was [her] copy." On June 4, 2012, Spencer County Judge-Executive Bill Karrer denied Mr. Trageser's request because he "did not go through the proper channels in filing an open records request . . . ." This appeal followed.
In correspondence directed to this office after Mr. Trageser initiated his appeal, Judge Karrer explained that the county implemented an open records policy in January 2012 requiring all departments to prominently post written notice that "All open records requests must be submitted to the Spencer County Attorney's Office, 7 West Main Street, Taylorsville, KY 40071." 2 Judge Karrer indicated that Mr. Trageser "had been following these procedures up until the date and request in question" and that Mr. Trageser "has made numerous properly executed requests since that date." Mr. Trageser does not contest these statements. Instead, he maintains that "[a]ny open records request before or after May 11, 2012, is not in question . . . [and] any argument presented by Karrer as to the procedure used by me is irrelevant." In addition, Mr. Trageser questions the propriety of Ms. Hollan's designation as official custodian of records, arguing that she is not the "the chief administrative officer or . . . other officer or employee of [the] public agency who is responsible for the maintenance, care and keeping of public records. "
With reference to the form of Mr. Trageser's request Judge Karrer advised that, notwithstanding previous compliance with the county's policy, on May 11:
Mr. Trageser made no such filing or request. . . . [T]here is no record of him submitting a completed request form. The request form in effect at the time of his request [is attached to this response as item "A"]. Since that date, we have introduced a new form to enhance tracking [also attached and marked as items "B" and "C"].
Responding to this statement, Mr. Trageser questions whether authority exists for the required use of the agency's open records request form.
The Spencer County Fiscal Court did not violate the Open Records Act in designating Ms. Hollan official custodian of records and, under these circumstances, requiring Mr. Trageser to submit his records request to her. In 00-ORD-73 this office addressed a nearly identical factual scenario. There, an individual who regularly submitted open records requests to the county, and who had been provided the name and address of the county's official custodian of records, refused to submit his request to the official custodian. At page 5 of 00-ORD-73, this office observed:
Under ordinary circumstances, if an open records request is inadvertently submitted to other than the official custodian, whether through ignorance or misdirection, agency employees are expected to promptly reroute the request to the official custodian so that a timely consideration of the request is insured. 98-OMD-64. However, in the instant case, [the requester] was notified of the name and address of the official custodian and the Kenton County Fiscal Court's policy that all open records requests should be sent to [the named official custodian] . [The requester] can claim neither ignorance nor misdirection. Despite the fact that he was given personal notification of the identity of the agency's official custodian, [the requester] submitted his request to the Kenton County Judge/Executive. This failure to follow the policies and procedures established by the agency suggests a lack of good faith cooperation on [the requester's] part.
In the same open records decision we approved the designation of an assistant county attorney as official custodian of records for the county. We cited 93-ORD-134 in which the Attorney General recognized that, if consistently applied, there is "nothing wrong with the . . . policy of processing open records through . . . [one office]" inasmuch as such a policy promotes "uniformity and adherence to the law."
In a later appeal filed by the same requester in which he voiced the same objection, we reaffirmed our position:
Regardless of whether [the requester's] refusal to properly address his requests affects the validity of those requests, we suggest that he consider how his actions have frustrated his access to the records he seeks. By refusing to address his request to the formally appointed and previously identified custodian of records, [the requester] has impeded his own right of access. Had [the requester] addressed his request to [the county official custodian] , he might now be in possession of the records identified in that request, rather than litigating an arcane procedural issue.
00-ORD-94, p. 4. As noted, copies of 00-ORD-73 and 00-ORD-94 are attached. We see no appreciable difference between the issues presented in these appeals and the issues presented in the appeal before us. Guided by these decisions, we conclude that Mr. Trageser's allegations concerning the county's refusal to consider requests that are not directed to the agency's official custodian of record lack merit. 3
Whether Mr. Trageser's allegation concerning the agency's required use of a preprinted open records request form lacks merit is a closer question. Although Judge Karrer references the form, he does not indicate that Mr. Trageser's right of access was conditioned on use of the form. The forms themselves, copies of which Judge Karrer provided to this office, contain no language importing mandatory use. Although the current form states that requesters "must make written request to the Official Custodian of Records," it expressly recognizes the adequacy of a signed request, on which the requester's name is printed legibly, that describes the records the requester wishes to inspect. 4 If practice does not mirror written policy, and the county requires open records requesters to use its preprinted form as a precondition to inspecting, or obtaining copies of, public records, that practice contravenes clearly established authority. In 11-ORD-080 we reaffirmed this longstanding principle. A copy of that decision is, as noted, attached hereto and incorporated by reference. If, on the other hand, the county's actual practice mirrors its written policy, we assign no error.
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:
Lawrence TrageserBill KarrerRuth Hollan
Footnotes
Footnotes
1 The copy of the request submitted to this office did not contain Mr. Trageser's signature. We trust that his signature appeared on the original request.
2 If this constitutes the entire content of the written notice posted in each department, it does not satisfy the agencies' duties under KRS 61.876. That statute 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:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(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.
. . .
The notice does not identify the principal office of the public agency, its regular office hours, fees for copies, or procedures to be followed.
3 Obviously, such a policy may not be employed to evade statutorily assigned duties. For example, the agency cannot deny a request on the basis of the requester's failure to properly address his request to the official custodian if the requester has not been provided with the custodian's title and address or if the requester has been intentionally misdirected. Conversely, a requester cannot thwart an otherwise proper policy by intentionally misdirecting his request in the hope of forestalling proper agency response.
4 In light of Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the "specificity" requirement found in the referenced document is of questionable validity.