Opinion
Opinion By: Jack Conway, Attorney General; Ryan Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Mayor Greg Fischer 1 violated the Open Records Act in partially denying Aubrey Williams' September 21, 2012, request to obtain copies of, or alternatively to inspect, records relating to "the mayor's involvement in the investigations" of Mr. Williams' client, Councilwoman Barbara Shanklin, by Louisville-Jefferson County Metro Council and Louisville Metro Police Public Integrity Unit. We affirm Mayor Fischer's disposition of numbered requests one and three, to the extent responsive records were located and disclosed. If the factual record were clear that the Mayor's Office rejected any of Mr. Williams' requests by improperly characterizing them as requests for information necessitating nonobligatory research, then this would be in violation of the Open Records Act. Mayor Fischer is obligated to disclose the record or records responsive to these requests or confirm the nonexistence of the record.
On September 21, Mr. Williams requested access to:
1. [T]he directive ordering the shut-down of the Upholstery Training Program, including the policy, rule and/or regulation that prompted that directive, or the incident that prompted the issuing of the directive.
2. [T]he policy, rule and/or regulation that prohibited the paying of the instructor for the Upholstery Training Program for services rendered at the time her contract was terminated.
3. [T]he contract that employed the instructor of the Upholstery Training Program, agreements between the government agency responsible for program, and the date that the contract was terminated and by whom. Please provide a copy of the rule, regulation, ordinance and/or authority that permitted the termination of the contract.
In a timely written response, 2 Metro Finance Coordinator Dee Allen responded on behalf of Mayor Fischer. Ms. Allen emphasized that Louisville Metro Government "is not the records custodian for Louisville Metro Council or any of its members and cannot search for or provide any records that may be held by that entity or its members." "Further," Ms. Allen explained, "a portion of [the] request is for 'information' vs. 'records,'" and the agency's search was confined to records. With specific reference to each request, Ms. Allen advised:
1. Responsive records (provided to previous open record requests) are comprised of an email and a memo for LMDC Director Mark Bolton to CFO Steve Rowland.
2. No records were identified meeting this description.
3. Records of the "contract" or "Intent to Purchase Services" are available and copies are being provided with redactions in protection of personal privacy consistent with KRS 61.878(1)(a). Records provided in Item 1 also responsive to Item 3.
She reiterated that this response "include[d] the search results for records held by OMB 3 and/or the Louisville Metro Department of Corrections [LMDC]."
Dissatisfied with this response, Mr. Williams initiated an open records appeal, challenging the adequacy of the mayor's response to requests two and three and noting that "if the mayor does not have the materials sought, the statute requires him to specifically address the requests." We find that the mayor complied with the Open Records Act in partially fulfilling Mr. Williams' requests. Had the mayor clearly mischaracterized as a request for information that portion of each request aimed at securing access to policies, rules, regulations, ordinances, or other legal authority supporting his actions in relation to the Upholstery Training Program, it would be a violation of the Open Records Act. Because there is conflicting information in the record, we are unable to determine whether a violation occurred.
In supplemental correspondence directed to this office after Mr. Williams submitted his open records appeal, the mayor explained, through counsel, that although a search of hard and electronic files in his office yielded no responsive records, a similar search of OMB and LMDC yielded fourteen responsive records from which only tax identification and local revenue commission tax numbers were redacted. 4 With respect to the remainder of Mr. Williams' request, the mayor continued to assert that he had no duty "to honor portions of Mr. Williams' request that were for information as opposed to identifiable public records. " Citing past open records decisions, the mayor further maintained that he was "not obligated to conduct research in order to satisfy an open records request or to locate statutes or regulations pertaining to the subject of a request." Later, the Mayor's Office communicated to this Office that searches were made for all documents responsive to Mr. Williams' requests and none were found. To the extent that the Mayor's Office relied on prior decisions of this Office to substantiate its claim that it was not obligated to search for records in the instant case, this was in error. The pertinent authorities are analyzed below.
In OAG 89-45 this office recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. There the requester sought the addresses of individuals whose names he had previously secured. We characterized this request as "a request for research to be performed, rather than for inspection of reasonably identified public records, " noting that the public agency from which the records were sought "had no compiled record corresponding to the request." See also 95-ORD-27 and 96-ORD-53.
For purposes of contrast, we examine 94-ORD-121. In that decision the requester sought copies of "'rules' promulgated by the Department for Libraries and Archives concerning the parameters within which the University of Kentucky Records Management Program must operate in its creation, maintenance, storage and servicing of records . . . ." According to the University's own Records Retention and Disposal Schedule, records containing these "rules" were required to be compiled and separately maintained in a designated area of the agency. Thus, the records had already been compiled for purposes of satisfying the agency's records retention obligation. No additional research needed to be performed. The records had only to be retrieved from the designated area and produced for inspection. We concurred with the requester in his view that the agency had improperly equated an obligatory search with nonobligatory research. 94-ORD-121, p. 7.
Similarly, in 01-ORD-51 this office held that a school district mischaracterized a request for a district policy relating to standardized tests and grade levels as a request for information necessitating nonobligatory research. At page 3 of that decision, we determined that the district "was obligated to cull that portion of the manual, or other applicable authority, that contains the policy prohibiting inclusion of a named standardized test or specified grade level in the annual goal portion of an [Individual Education Plan] and furnish a copy to [the requester] or to advise him in clear and direct terms that no records responsive to his request exist." We observed:
The fact that [the requester] wished to obtain a copy of the specific and individual policy, as opposed to the entire handbook, did not transform his request for a document into a request for information. The fact that he could not identify the desired policy by page and section number did not render his request imprecise or nonspecific. Clearly, the district had no difficulty in identifying the subject of his inquiry . . . . [Nevertheless, the district] elected to treat the request as an improperly framed request for information. We believe it was a properly framed request for an individual policy or policies pertaining to this subject, and that the district was statutorily obligated to furnish him with copies of the policy or policies, as opposed to the entire handbook, or unequivocally advise him that no responsive policy exists. In sum, we find that district has improperly equated an obligatory search for a particular policy with a request for nonobligatory research to be performed. If its obligatory search uncovers no responsive policy, it must affirmatively so state.
01-ORD-51, p. 4; accord, 06-ORD-117 (the fact that requester asked for a copy of a section of a housing authority document containing the prohibition on communications with the authority's attorneys, as opposed to the document as a whole, did not transform the request into a request for information or necessitate nonobligatory research); compare 02-ORD-213 (request for procedures and criteria relating to child support was not an improperly framed request for information, since "the mere insertion of the word 'written' before 'procedures and criteria'" would clearly render it a properly framed records request, but child support division was not obligated to honor the request because it did not maintain a compilation of state authority addressing these matters and was not obligated to perform legal research to compile one); see also,
Lang v. Sapp, 71 S.W.3d 133 (Ky. App. 2002) (affirming inmate's right to corrections policies relating to inmates afflicted with hepatitis).
Mr. Williams requested policies, rules, regulations, or ordinances supporting the mayor's actions relative to the Upholstery Training Program Mr. Williams' client initiated. These actions included the decision to terminate the program, to terminate the program instructor's contract, and to refuse to pay the instructor for her services. Like the actions of the school district in 01-ORD-51, or the housing authority in 06-ORD-117, these actions may or may not have been grounded in policy, rule, regulation, or ordinance. If not, a simple declaration to that effect would suffice. The weight of authority suggests that an attempt to characterize a request for a policy as a request for information, or to resist disclosure on the grounds that a request for a policy necessitates nonobligatory research, is unavailing. "Every request to inspect a public record causes some inconvenience to the staff of a public agency, " this office recognized shortly after the enactment of the Open Records Act, "[and] we believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. " OAG 77-151, p. 3. To the extent that the Mayor's Office did not search for records, which from the factual record is unclear, it would be in violation of the Open Records Act.
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:
Aubrey WilliamsDee AllenTerri A. GeraghtyMayor Greg Fischer
Footnotes
Footnotes
1 Pursuant to KRS 61.870(1)(a), Mayor Fischer is a "public agency," within the meaning of the Open Records Act, because he is a ". . . local government officer."
2 Mr. Williams' request reached the mayor on September 24, 2012.
3 Office of Management and Budget.
4 Mr. Williams raised no objection to these redactions.