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 Dry Ridge violated the Kentucky Open Records Act, or subverted the intent of the Act within the meaning of KRS 61.880(4), in the disposition of William Cummings' March 21 , 2013, request for "access to and copies of" "Any materials pertaining to billing of water and [s]anitation in the City of Dry Ridge from 1988 to present," "Any and all water service ordinances and minutes from council meetings, where water billing and water meters were discussed from 1988 to present," and "Any and all sanitation service ordinances that were discussed from council meetings from 1988 to present." By letter dated March 22, 2013, City Clerk Cindy L. Harris acknowledged receipt of Mr. Cummings' request and notified him that her office was "in the process of finding the requested city records and copying them for your review and use. However, this work will take some time to complete and requires my personal attention. When completed, I shall notify you and see how you want tender of the papers." Noting that he was not provided with access to such records within three business days nor was a date specified for inspection or production of copies, Mr. Cummings initiated this appeal by letter dated June 15 , 2013. Upon receiving notification thereof, Michael S. Mulvey, City Attorney, responded on behalf of the City, asserting, in relevant part, that his client "did make a written response within 3 days as to granting access to these City records voluminous under [sic] and inspection time certain within regular business hours and with time allowed to search for? [sic] find and duplicate the materials. No denial was hade or made by the City. . . . KRS 61.872(3) and (5)[.]" Mr. Cummings "made no attempt to arrange for a time certain during business hour[s] to have access to and inspect the requested records or begin to get copies of same," 1 Mr. Mulvey observed, "as verified by [his] discussions with the City Clerk as to the enormity of the search and task." Mr. Mulvey asserted that Mr. Cummings expected to have "3-day's service in finding, gleaning, copying and having a custodial viewing and inspection of" the "26 years plus of records, 307 months of minutes searches for the once-a-month meetings alone, plus 80 to 100 months more to allow second-monthly meeting and special meeting [sic] for more minutes, and all ordinances as to water matters? [sic] [and] sewerage matters and billings, etc." The City maintained that "same should be deemed" an "unreasonable burden" or at least justify "an extension of time for document discovery and duplication under KRS 61.872(6)." Mr. Mulvey confirmed that the City "intends to locate and provide Mr. Cummings with the requested records given time sufficient."
Because Mr. Cummings did not "precisely describe" the records being sought, nor can the records consequently be characterized as "readily available, " the City was not required to provide him with copies by mail regardless of whether he resides in the same county where the records are located; however, the City was required to make any existing potentially responsive documents available for inspection during regular business hours in accordance with KRS 61.872(2) and (3) in a timely manner. This office has no basis upon which to find that a substantive violation of the Act was committed as the City did not deny access. However, in delaying access indefinitely the City did subvert the intent of the Act, short of denial, within the meaning of KRS 61.880(4). It was required to either provide Mr. Cummings with access to any existing potentially responsive documents within three business days per KRS 61.880(1) or , in the alternative, properly invoke KRS 61.872(5), if appropriate, 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.
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, generally speaking. 2 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." In applying this provision, the Attorney General has consistently observed:
"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). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). . . . [T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added.) Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain ." 01-ORD-38, p. 5 [Emphasis added.]
01-ORD-140, pp. 3-4 (some emphasis added).
More recently, this office reaffirmed that any extension of the statutory time frame of three business days "must have a statutorily recognized basis [records in active use, in storage or not otherwise available], must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain. " 08-ORD-021, p. 6 (original emphasis). See 10-ORD-201 (City responded in a timely manner on both occasions but City Attorney initially advised that records containing some of requested information would be available within 45 days only to subsequently indicate (three days later) that said records, in addition to others, would be available within sixty days and City was found in violation of KRS 61.872(5)). Noticeably absent from the City's initial response is any reference to KRS 61.872(5), the only exception to KRS 61.880(1). Vague estimates of how long the delay will be, such as that provided in the City's original and supplemental responses ("some time" and "time sufficient"), have been deemed insufficient for purposes of complying with KRS 61.872(5), requiring the "place, time, and earliest date" when records will be available for inspection. 08-ORD-006, p. 4 (City Clerk's response advising that it would be "a couple of weeks" before she could "get the copies together" without further explanation violated KRS 61.872(5)); see 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. "); 07-ORD-158 (Finance and Administration Cabinet's response that it was "in the process of filling" the request and expected to fill it "within the next two weeks" did not comply with KRS 61.872(5)). While a reasonable delay was justified here given the broad nature of Mr. Cummings' request and the period of time it encompassed, the City's response(s) lacked the statutorily required specificity and it subverted the intent of the Act by delaying access indefinitely.
That said, the City is authorized to require inspection of existing responsive documents (for example, all minutes dating back to 1988 which Mr. Cummings may search to locate references to "water billing and water meters") prior to providing Mr. Cummings with copies given that he did not "precisely describe" those documents per KRS 61.872(3)(b). In 99-ORD-63, for example, this office was asked to determine whether the Breathitt County Clerk had violated the Act in refusing to honor a request for "any and all coal leases" containing specified name variations. Although the Clerk erred in failing to cite the applicable statutory exception, this office affirmed his disposition of the request since the requester had not satisfied the requirements of KRS 61.872(3)(b), and was therefore not entitled to receive copies of public records by mail. Id., p. 3. Such is the case here. 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. 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.
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) 3 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. 4 In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in "definite, specific and unequivocal terms" the records he wishes to access by mail, i.e. without on-site inspection. Id. This Mr. Cummings has not done, particularly as to his first category of documents, i.e., "any records pertaining to billing of water and sanitation...." However, Mr. Cummings is 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 authorized to require prior to providing him with copies. 5
Even if Mr. Cummings resides and/or works in a different county, which appears to be the case, 6 the City is not required to mail copies because the records are not "precisely described" nor can the records be properly characterized as "readily available. " This final requirement "permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, public agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant." 99-ORD-63, p. 3. As the Attorney General first observed in OAG 76-375, "[public] agencies and employees are the servants of the people . . . , but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." Id., p. 4; 99-ORD-63. Consequently, this office has consistently held that if the records which the applicant requests to access by receipt of copies via mail "cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them." 99-ORD-63, pp. 3-4. Under such circumstances, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. " Id., p. 4; 11-ORD-007; 12-ORD-049.
As in 99-ORD-63, the requester has failed to describe the records he wishes to access by receipt of copies in "definite, specific, and unequivocal" terms, and, therefore, fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not "precisely described," the records cannot accurately be characterized as "readily available" within the agency. The City is authorized to require Mr. Cummings to conduct an on-site inspection of the potentially responsive documents prior to furnishing him with copies. Where a requester cannot identify the records sought with precision, or wishes to extract information that has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency . . . ." OAG 76-375, p. 3.
The City has agreed to provide Mr. Cummings with access but has yet to specify a date by which Mr. Cummings will be permitted to make such a "fishing expedition. " Notwithstanding the volume of records implicated, a delay of approximately four months and counting without further explanation is not reasonable, particularly given the silence by the City from March 22 until this appeal was filed. The City gave no indication after its March 22 response of when the records might be available prior to receiving notification of his appeal in response to which it agreed to provide the records "given time sufficient." In light of the foregoing, this office finds that more than sufficient time has elapsed for the City to produce all existing responsive documents in the custody or possession of the agency for inspection during regular business hours. "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 v. U.S. Department of Justice , above , at 1041. See 08-ORD-006; 10-ORD-201; 11-ORD-196; 12-ORD-105.
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:
William CummingsCindy L. HarrisClay CrupperMichael Mulvey
Footnotes
Footnotes
1 In the interest of absolute clarity," this office notes that Mr. Cummings (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the [agency]." Id., p. 5. See 02-ORD-094 and 03-ORD-183.
2 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.
3 In relevant part, KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected."
4 A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963)." Id.
5 In Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 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. Mr. Cummings' request for "any materials" pertaining to billing of water and sanitation dating back to 1988 was arguably not adequately specific for the City to ensure that all existing responsive documents were identified and located. See 13-ORD-077. However, the City did not ask for clarification or challenge the specificity of his request; accordingly, this office must assume that it was able to ascertain the nature and scope thereof and, to its credit, opted to make a good faith effort (see 95-ORD-96) to produce all potentially responsive documents.
6 Mr. Cummings resides in Walton, Kentucky, which is located in Boone County and Kenton County; however, the City of Dry Ridge is located in Grant County.