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 Spencer County Judge Executive violated the Kentucky Open Records Act in denying Lawrence Trageser's May 27, 2012, request for "any records or documents reflecting a letter sent to Kentucky State Police Commissioner Rodney Brewer" relating to "removing Sergeant Kenny Stewart from the 911 Dispatch Commission." In a timely written response, Judge Executive Bill Karrer advised "I have no such documents so therefore, I cannot produce them." By letter dated January 22, 2013, Mr. Trageser initiated this appeal, enclosing a copy of his October 26, and November 13, 2012, requests, directed to Kentucky State Police Commissioner Rodney Brewer and "Official Custodian of Records Attn: Cheyenne," respectively, and seeking "any document or record reflecting a complaint letter sent to Rodney Brewer from Spencer County Judge Executive Bill Karrer." Mr. Trageser advised that said letter was "in reference to a complaint involving and or referencing Sergeant Kenny Stewart with the [KSP, who was also] seated on the Spencer County 911 Commission." Mr. Trageser also enclosed a copy of the November 20, 2012, response by KSP Official Custodian of Records Emily M. Perkins, and the copy of the responsive letter that was provided with Ms. Perkins's response. Upon receiving notification of Mr. Trageser's appeal from this office, Judge Karrer merely reiterated "I had and have no 'records or documents reflecting a letter,' no notes, no rough drafts, no memos and so forth." For the first time Judge Karrer acknowledged that he "did send a letter" but asserted that Mr. Trageser "failed to ask for that. If Mr. Trageser wanted the letter, he should have been plain in his convoluted request." Although Mr. Trageser's request may not have been a model of clarity, this office respectfully disagrees with Judge Karrer's characterization and resulting denial of the request.
Public agencies cannot produce nonexistent records for inspection or copying; 1 however, a reasonable interpretation of Mr. Trageser's request, when viewed in context, is that he intended to encompass the letter itself. His request was "adequate for a reasonable person to ascertain its nature and scope . . . ." and was therefore sufficiently descriptive under Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). Because Mr. Trageser apparently resides and works in the county where the record was/is located, the Judge was/is authorized to require inspection of potentially responsive documents prior to providing copies by mail per KRS 61.872(3) even assuming that he "precisely describe[d]" the record(s) being sought. 2 However, the Judge was not permitted to deny access entirely notwithstanding his belated assertion that Mr. Trageser failed to describe the requested letter with adequate specificity. See 12-ORD-049; 12-ORD-128; 12-ORD-169.
Mr. Trageser sought access to a public record 3 that Judge Karrer has acknowledged was in existence on the date of the request. Evidence presented on appeal otherwise confirms that he authored such a letter and suggests that he would have possessed a copy. A reasonable person would have deemed the letter in dispute as being at least potentially responsive on the facts presented. The Judge did not initially offer any explanation of his position that no such record(s) existed in his possession. His belated argument regarding the semantics of Mr. Trageser's request is unpersuasive. See 10-ORD-064; 11-ORD-013; 11-ORD-050. Accordingly, this office concludes that Mr. Trageser's request was adequate to enable the Judge to identify and locate a potentially responsive public record (s) when evaluated in light of Commonwealth v. Chestnut , above. In the absence of a statutory basis to justify his denial, the Judge violated the Act in failing to make any existing record(s) that was potentially responsive to Mr. Trageser's request available for inspection per KRS 61.872(2). To hold otherwise would elevate form over substance.
In Chestnut , the Kentucky Supreme Court established the standard by which this office must assess the adequacy of a request to inspect public records, declaring that such a request need only be "adequate for a reasonable person to ascertain [its] nature and scope." The Court expressly rejected the agency's claim that the subject request was "too broad and overly vague." Emphasizing the presumption of openness 4 and the fundamental principle that "any person" enjoys an equal right of access to nonexempt public records, 5 the Court determined that the law "identifies no class or type of persons . . . who are held to a more stringent standard when submitting open records requests," and that the agency " bears the burden to rebut the strong presumption in favor of disclosure ." Id. at 660 (emphasis added).
In addressing the adequacy of the request by Chestnut for his "inmate file excluding any documents that would be considered confidential, " the Court rejected the claim that he was required to "describe the record with reasonable particularity, " Chestnut at 658, reasoning as follows:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected . . . . [I]t is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described .
. . .
[The requester] described the records he wanted to see . . . . It appears obvious to us that [his] request was adequate for a reasonable person to ascertain the nature and scope. [Footnote omitted.] He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . that he had never seen. [Footnote omitted.]
Chestnut at 661.
In so holding, the Court expressly contrasted the standard for evaluating the adequacy of Chestnut's request under KRS 61.872(2) with a request to access the records by receipt of copies through the mail under 61.872(3), noting the absence of a particularity requirement in the former and the presence of such modifying language in the latter, and endorsing the "astute holding" of the District Court of Rhode Island that an Open Records request:
should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure. Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979).
Chestnut at 662 (emphasis added). See 10-ORD-076; 11-ORD-127; 12-ORD-135; 12-ORD-137.
Even assuming that Mr. Trageser failed to "precisely describe" the letter being sought, which is debatable under the circumstances presented, his request identified the letter with adequate specificity to satisfy KRS 61.872(2). Rather than ask for clarification regarding the specific record(s) to which Mr. Trageser sought access upon receipt of his request, 6 if any was needed, or elaborate upon the rationale for his assertion that no responsive document(s) existed in the possession of the agency, the Judge denied the request altogether without any explanation or indication that a proper search was conducted. 7
In sum, the Judge was authorized to require Mr. Trageser to inspect any existing record(s) that was potentially responsive to his request prior to providing him with a copy whether his request otherwise satisfied the higher standard of specificity found at KRS 61.872(3) or not (see note 2); however, the agency was not permitted to deny access to an existing nonexempt record(s) based on a "narrowing legalistic interpretation" of his request. Under these circumstances, "the agency satisfies its obligations under the Open Records Act by making the record[s] available for inspection during normal office hours." 99-ORD-63, p. 4. See 08-ORD-047; 11-ORD-127; 12-ORD-049; 12-ORD-082; 12-ORD-169. Accordingly, the Judge violated the Open Records Act in denying Mr. Trageser's request.
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 Karrer
Footnotes
Footnotes
1 With regard to what is generally required of a public agency to discharge its duty under the Open Records Act when denying a request based on the nonexistence of the records in dispute, 13-ORD-016 (following Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005)), a copy of which is attached hereto and incorporated by reference, is controlling.
2 Pursuant to KRS 61.872(3):
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. . . .
As the Attorney General has often recognized, 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. Thus, 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. 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. See 12-ORD-049.
3 KRS 61.870(2).
4 KRS 61.871.
5 KRS 61.872(1).
6 This office has expressly recognized that a request for clarification is not properly characterized as a denial. See 04-ORD-198; 05-ORD-241; 08-ORD-170; 10-ORD-057.
7 A public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted). Further, a public agency must specify the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty. See 08-ORD-206; 10-ORD-222; 11-ORD-041; 12-ORD-087.