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 and the Spencer County Clerk violated the Open Records Act in the disposition of Lawrence Trageser's March 11, 2013, requests for records relating to procurement and use of automated office equipment, and associated support services, from 1990 to the present. We find that responses issued orally or in writing by both the fiscal court and the clerk were only partially consistent with the requirements of the Act. To the extent inconsistent with these requirements, the actions of the fiscal court and the clerk violated the Act.
On March 31, 2013, 1 Mr. Trageser appealed the partial denial of his request for records confirming "legal ownership and right to use" seven Microsoft Office programs, such as "license keys or similar proof," as well as records relating to the removal of "the programs from Spencer County government computers or not reinstalling the programs" on new computers, such as work orders or billing invoices. Mr. Trageser's request was apparently prompted by comments made by a representative of Custom Solutions, Inc., Randy White, that appear in the minutes of the January 22, 2013, Spencer County Fiscal Court meeting and a January 22, 2013, email from Mr. White to Judge William Karrer relating to contract fulfillment issues.
In the same letter, Mr. Trageser appealed the disposition of identical March 11, 2013, requests submitted to the deputy judge-executive 2 and county clerk for documents relating to the purchase, lease, contractual use, or free promotion of "any computer, internet, landline phone, cellular phone, and electrical office equipment to include wiring systems, trunk lines, or networking equipment." In addition, Mr. Trageser requested access to "all contracts, purchase orders, invoices and agreements . . . with any computer service repair, computer sales, computer equipment, wiring systems, networking systems, internet provider, cable provider, landline phone, cellular phone, or IT organization dealing with the Spencer County Clerk's office since 1990." Mr. Trageser later explained that he was compelled to submit two requests to two county officials because former Spencer County Clerk Judy Puckett "did not fee pool" and therefore controlled office purchases. Although her successor, Ms. Hesselbrock began fee pooling in December 2011, he was unsure where the records of the former clerk reside.
In a timely response, the fiscal court agreed to disclose "the receipt for the purchase of the Microsoft software program," but indicated that it was "unable to release or allow [Mr. Trageser] to examine the licensing keys for the software as the release of this information would allow unauthorized installation of the software. " The fiscal court also denied Mr. Trageser's request for records relating to the removal, or the decision not to reinstall in the county's new computers, the Microsoft Office programs. This denial was based on the non-existence of records responsive to the request. The fiscal court advised Mr. Trageser that no "organization or business" was paid to specifically remove the Microsoft programs from Spencer County government computers" and that "if the programs were not reinstalled . . . there would not be any written document reflecting such action."
In response to Mr. Trageser's dual requests for records relating to procurement and use of "electrical office equipment," including computers, internet service, landline phone, and cellular phone, the fiscal court asserted that the records sought were not identified with "enough specificity to allow [the fiscal court] to identify and locate said records." The fiscal court maintained that he "failed to specify from which particular county office or if [he] would like to review said records for every county office." Noting that Mr. Trageser submitted identical requests to the deputy county judge and county clerk, the fiscal court suggested that he "resubmit his request specifying if [he] wish[ed] to review only documents for the county clerk's office or for all county offices." The fiscal court agreed to disclose contracts, purchase orders, invoices, and agreements with services providers for the Spencer County Clerk's automated systems from the past four years, suggesting that he contact Deputy Judge Curtsinger to arrange a time for inspection, but noted that older records "are currently in storage and may take additional time to make available for review."
In supplemental correspondence directed to this office, the fiscal court invoked KRS 61.878(1)(k) 3 in reaffirming its denial of Mr. Trageser's request for license keys on the basis that "release of this information would allow him or any other person unauthorized installation of the software, " and in reminding this office that Mr. Trageser was afforded access to receipts for the purchase of the program. The fiscal court again denied the existence of records relating to payment for removal of ostensibly unlicensed software from government computers, countering Mr. Trageser's claim that Randy White's statements 4 establish the existence of such records by characterizing these statements as proof only of the fact that Mr. White's company "could not install the software on the new computers and that an alternative software program was used," and not proof of payment for removal of ostensibly unlicensed software. As for records documenting the decision not to reinstall the software, the fiscal court reiterated Mr. White's statement that:
only the receipts were found for the software in question but no licenses. Therefore the software was not installed on the new computers. Mr. Trageser's statement was for documentation that the software was not " reinstalled " not whether it had been installed on any new computers or computers that did not previously have the software in question.
In closing, the fiscal court continued to assert that "the Kentucky Open Records Act was not violated" in the disposition of Mr. Trageser's requests.
To facilitate our review of the issues on appeal, on May 9, 2013, this office asked that the Spencer County Fiscal Court provide us with copies of the invoices to which Mr. Trageser was afforded access, copies of the disputed license keys, and copies of its contract with Custom Solutions, Inc., and/or Randy White, pursuant to KRS 61.880(2)(c). The fiscal court provided us with copies of invoices and the hardware lease agreement with CSI Custom Solutions, Inc., but indicated that it was "unable to provide [the Attorney General] with a copy of the license keys as we do not have the license keys and we do not have the actual program software either." The fiscal court suggested that we contact Col. Carl Reasor at the Spencer County Sheriff's Department if we have "questions about the current criminal investigation." With reference to the lease agreement, the fiscal court restated its belief that "the work that CSI Custom Solutions, Inc., performed had nothing to do with the request that Mr. Trageser made," and that it committed no violation of the Open Records Act in partially denying his request.
Procedural violations
Although the fiscal court responded to each of Mr. Trageser's requests in a timely fashion, its responses were deficient insofar as they omitted required statutory references. KRS 61.880(1) establishes legal requirements for agency response to open records requests. It 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The fiscal court denied Mr. Trageser access to "license keys or similar proof" of ownership of seven Microsoft Office programs based on its position that disclosure "would allow unauthorized installation of the software. " The fiscal court cited none of the fourteen exceptions codified at KRS 61.878(1)(a) through (n) in support of its position in its original response. The fiscal court referenced KRS 61.878(K) in its supplemental response, presumably intending to invoke KRS 61.878(1)(k) as a basis for withholding "public records or information the disclosure of which is prohibited by federal law or regulation, " but omitted any reference to the federal law or regulation upon which it relied. Additionally, the fiscal court advised Mr. Trageser that it had ready access to records from the last four years that were responsive to his request for contracts, purchase orders, invoices, and agreement with service providers for the Spencer County Clerk, but did not cite KRS 61.872(5) in postponing access to the remaining records or designate the "earliest date on which the public record[s] will be available for inspection. " The Spencer County Fiscal Court's denials were procedurally deficient and, to this extent, violated KRS 61.880(1).
Substantive violations
It is unclear why, having first invoked KRS 61.878(1)(k) as the basis for denying access to license keys, the fiscal court denied custody of the keys upon direct inquiry by this office. If, at the time of Mr. Trageser's request, the license keys had been turned over to the Spencer County Sheriff's Department in furtherance of the sheriff's investigation, and no copies maintained by the fiscal court, the fiscal court's original denial should have so stated. If, at the time of the request, the fiscal court possessed the license keys, its denial should have been articulated in a manner consistent with KRS 61.880(1), citing both KRS 61.878(1)(k) and the federal law or regulation upon which it relied. If, at the time of the request, the licensing keys were unavailable or could not be located, for whatever reason, the fiscal court's denial should have so stated. Because the fiscal court was unable to comply with our KRS 61.880(1) request for copies of the license keys, and because the fiscal court failed to cite the federal law upon which it relied in denying Mr. Trageser's request, it cannot be said to have satisfied its statutory burden of proof. 5
Turning to Mr. Trageser's request for records reflecting payments associated with Custom Solutions, Inc.'s, discovery of ostensibly unlicensed software, we find that the fiscal court's response was based on an overly restrictive reading of that request (enclosed). 6 Accord, 13-ORD-029. Mr. White's statement during the January 22 fiscal court meeting, and the email he sent to Judge Karrer on the same day, indicate that Custom Solutions, Inc., expended "considerable effort . . . in reformatting Microsoft Office documents and instruction in the use of Open Office," as a consequence of its discovery that no license keys were available for Microsoft Office. We do not construe this statement as proof that Custom Solutions was not compensated for efforts expended in redressing the discovery of ostensibly unlicensed software, though those efforts may not have exclusively consisted of removal of the software from the old computers and the decision not to reinstall the software on the new computers. Under the terms of their lease agreement, the fiscal court is required to pay Custom Solutions, Inc., $ 2,115.00 per month for specified hardware and hardware replacement. The agreement obligates Custom Solutions, Inc., to "install all hardware and configure all computers." This obligation may or may not extend to installation of software and other support services, but it is clear that the company's "considerable efforts" in "reformatting Microsoft Office documents" and providing "instruction in the use of Open Office" did not fall within the express terms of its contractual obligation. Any work orders, invoices, or payment records associated with that company's, or any other company's, efforts to address the discovery of ostensibly unlicensed software are responsive to Mr. Trageser's requests. The Spencer County Fiscal Court is obligated to conduct an adequate search for such records and produce them for his inspection. If that search yields no results, the fiscal court should so advise Mr. Trageser.
Additional claims
The balance of Mr. Trageser's open records appeal focuses on the manner in which his dual requests for the same records was handled. Clearly, his attempts to retrieve responsive records on May 18, 2013, were met with numerous obstacles, most of them occasioned by the apparent confusion surrounding the identity of the county's official custodian of records. KRS 61.870(5) defines that term as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." Mr. Trageser identifies Deputy County Judge-Executive Curtsinger as official custodian of records. The Spencer County Attorney identifies herself as official custodian of records. In 12-ORD-167, this office affirmed the propriety of the Spencer County Fiscal Court's designation of the county attorney as official records custodian and determined that Mr. Trageser's allegations concerning the fiscal court's refusal to consider requests not directed to her lacked merit. A copy of that decision is enclosed. To the extent that the impediments he encountered on May 18 arose from the misdirection of his requests to the deputy county judge and county clerk, rather than the county attorney, we assign no error to the fiscal court. To the extent that the fiscal court attempted to impose requirements for inspection not found in the law, such as a requirement that he telephone the deputy county judge for an appointment to inspect responsive records, we find that its actions were inconsistent with 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:
Lawrence TrageserBill KarrerKaren CurtsingerLynn HesselbrockRuth A. Hollan
Footnotes
Footnotes
1 Pursuant to KRS 61.880(2)(b)1., the deadline for issuing an open records decision in Mr. Trageser's appeal was extended by thirty business days "to obtain additional documentation from the agency or a copy of the records involved."
2 It is unclear whether Deputy County Judge-Executive Karen Curtsinger, to whom Mr. Trageser's request was directed, or the Spencer County Attorney Ruth Hollan, is official records custodian for the Spencer County Fiscal Court. Mr. Trageser asserts that Deputy Judge Curtsinger is official custodian but in 13-ORD-029, analyzed below, the fiscal court asserted that the Spencer County Attorney was assigned those duties.
3 Improperly cited as KRS 61.878(K).
4 Mr. White's quoted statement reads as follows::
Considerable effort was expended in reformatting Microsoft Office documents and instruction in the use of Open Office. This was due to there not being any license keys available for Microsoft Office. Our understanding was that Spencer County had licensed copies of Microsoft Office that could be installed on new machines. All that could be found were receipts for this software but no licenses.
5 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
6 In 13-ORD-029, involving these parties, this office extensively quoted from the Kentucky Supreme Court's opinion in Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). We emphasized the Court's reliance on a Rhode Island case recognizing 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 interpretation by the government" in holding that the Spencer County Fiscal Court construed a request submitted by Mr. Trageser too narrowly.