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 Office of the Clark County Attorney subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), in the disposition of William D. Elkins' February 5, 2014, request that Clark County Attorney Brian N. Thomas "make certain records available for inspection, and or copy. Please find attached a list of court cases. Then please provide a case number and a copy of any record bearing such case number, for any case on the attached list where the County Attorney's office performed any service in the case." Answering this request "by identifying any particular case on the attached list and indicating that there has been no service performed by the County Attorney's office," Mr. Elkins advised, "would be acceptable with respect to such case. Please provide the requested record for all other cases." Based upon the following, this office finds no error in the agency's disposition of Mr. Elkins' request as originally framed.
In a timely written response, Assistant County Attorney John M. Hendricks acknowledged receiving Mr. Elkins' request on February 6, and further advised that "6,023 pages of documents and 5 DVDs/CDs within the custody of the Clark County Attorney's office" were responsive to said request. Pursuant to KRS 61.872, Mr. Hendricks continued, "copies of said records are available for your pick-up upon payment of $ 607.30 in fees associated with the copying of said documents together with the cost of the enclosed DVDs, in accordance with KRS 61.874." Mr. Hendricks further advised that the County Attorney's Office no longer possesses any records pertaining to "Williams, Marianne vs. Williams Shannon D, Clark-07-CI-00013," because said records "were destroyed on June 12, 2011, in accordance with the Kentucky Cabinet for Health and Family Services record retention policy." 1 In accordance with KRS 61.872(4), Mr. Hendricks also explained that the County Attorney's Office is not the records custodian for some of the requested records, advising that "[r]ecords of court cases are maintained by each county's respective Circuit Court Clerk" and providing a list containing the name and contact information for the ones to whom Mr. Elkins needed to direct requests for said records.
By letter directed to Mr. Thomas on February 11, 2014, Mr. Elkins replied that he "did not request a copy of every record in the custody of the County Attorney's office. My request was for inspection/ copy of records bearing the case number of any case where the County Attorney's office performed a service. This is a deliberate limitation of what was requested." Mr. Elkins then referenced two different examples for purposes of illustrating the kind of cases that his February 5 request was not intended to include. "Again," Mr. Elkins continued, "if it is just a private case handled by you as a private attorney, I am not requesting any copies. What I really seek to determine here is which of the 390 cases are bona fide County Attorney cases and which ones are just private counsel cases." In his view, "the easiest and most economic response would be to declare the private cases as private so we can move ahead with the bona fide County Attorney cases." To the extent "you have any records at this point," Mr. Elkins concluded, "I suppose I should inspect them and then determine what will need to be copied to avoid any confusion as to what is to be provided. . . ."
Mr. Hendricks promptly advised that Mr. Elkins that his introductory statement in the February 5 request contained the "same boilerplate language" found in his prior two requests. However, within the body of the request, Mr. Hendricks continued, "you specifically requested ' a copy of any record bearing such case number, for any case on the attached list. . .' (emphasis added). The closing of your letter did not request that our office communicate to you a time to inspect said records but stated '[p]lease provide the requested record for all other [responsive] cases.'" Mr. Hendricks emphasized that his February 11 response was not intentionally overbroad; rather, the County Attorney's Office "has identified and copied 6,023 pages of records that are responsive to your request for ' any record bearing such case number' of the 390 cases identified in your open records request (emphasis added)." Said records "are only records contained within the files and custody of the Clark County Attorney's office and are not records of any other entity or governmental agency. As I stated in my previous letter, portions of your request were directed to the wrong" records custodian. Mr. Hendricks advised in closing that responsive files "have already been copied and extensive time and resources were expended given the sheer volume of cases requested by you. There is now due and owing $ 607.00 for copies that were made pursuant to your request for copies of 'any record bearing such case number. '" This appeal followed.
"Essentially," Mr. Elkins explained on appeal, the list of 390 cases was "believed to be related to Brian Thomas' private practice and the request was designed to produce a single 'any' record from each case, which would bear a case number in any case" regarding which the County Attorney's Office had performed a service, "which would allow all cases for which no record was provided to be excluded from county attorney service by deduction." Mr. Elkins noted "the absence of the plural, record(s)" in the phrase, "a copy of any record bearing such case number, " contending that the agency's clear "intent was to put the record from each case out of my reach by bootstrapping unrequested DVDs/CDs and additional paper copies that were not requested." Having reviewed the 6,023 pages "which arise out of 40 cases on the list of 390[,]" Mr. Elkins asserted that a "single record from those cases would be $ 4.00, but there [are] 810 pages of paper ($ 81.00) which contain a case number from the list and 5,213 pages which are non-responsive. This includes documents from 11 cases not on the list and at least 1,000 pages of duplicate copies." In his view, the County Attorney's Office "should be required to refund $ 526.00 for the DVDs/CDs and 5,213 paper copies which were not requested."
Upon receiving notification of Mr. Elkins' Open Records Appeal from this office, Mr. Hendricks advised that his February 5 request "clearly and unequivocally stated on two (2) occasions that he wanted copies of responsive documents." On appeal, Mr. Hendricks correctly observed, "Mr. Elkins' chief argument appears to be the phrase 'any record' is not functionally equivalent to a request for 'all records.'" Citing OAG 76-375, Mr. Hendricks further asserted that "[i]t has long been held that 'a person does not have a right to require a list to be made from public records if the list described does not already exist...." Although it now appears that Mr. Elkins was "seeking to discover information regarding any private practice activities of individuals in this office," Mr. Hendricks observed, his actual request "was much broader. Mr. Elkins requested 'a copy of any record bearing such a case number, for any case on the attached list....' The documents, CDs and DVDs provided to Mr. Elkins were located in the respective record of a file bearing one of the 390 case numbers provided by Mr. Elkins." Contrary to Mr. Elkins' new assertion, "he did not request a single page from each record bearing any of the 390 case numbers." The duty of identifying which records are being sought with adequate specificity, Mr. Hendricks noted, falls upon the requester as evidenced by prior decisions of the Attorney General. In construing his request "for 'a copy of any record,' the County Attorney's office attempted to hold true to the intent of the Open Records Act and interpreted 'record' as a request for all documents contained within files that corresponded to the request." The County Attorney's Office persuasively argued that "[f]unctionally, the words 'any record' and 'all records' are a distinction without a difference." Mr. Elkins requested copies of "any record" concerning 390 separate cases, the agency reiterated, and was provided with copies of all documents responsive to his request.
While there is no difference between a request for "any record" and a request for "all records," Mr. Hendricks continued, "there is a distinction between a request for 'any record' and a request for a single page." Quoting the definition of "record" found in Black's Law Dictionary 1055 (Abridged 8th ed. 2005), Mr. Hendricks emphasized that a request for a record is "distinctly different" from a request for a single page. With regard to Mr. Elkins' claim that some of the documents provided were nonresponsive, duplicative, or from different cases, the County Attorney's Office was unclear as to his exact allegations; however, in relation to his claim regarding nonresponsive documents that did not contain a case number, the agency explained that he did not request only those pages bearing a case number. Accordingly, he was provided with "a copy of the entire file of any record which bared one of the 390 relevant case numbers."
In addressing the approximately 1,000 pages of purportedly duplicate copies, Mr. Hendricks advised that "as several of these matters were appealed, the appeal process would have included copies of lower court filings, exhibits, orders, and other necessary documents to establish the record on appeal. These 'duplicates' may have also included unsigned drafts, returned copies, or other relevant copies included in the responsive record." Finally, with regard to 11 cases that Mr. Elkins advised were not among the 390 cases requested, Mr. Hendricks noted that he failed to state how many pages were included or identify the cases. "It is entirely possible," Mr. Hendricks advised, that said cases "were utilized as research material, were cases that were so materially related to a responsive case that documents were stored in both records and/or cases which were stored in a responsive record." In sum, the County Attorney's Office maintained that it "has fully complied with all aspects of the Kentucky Open Records Act" in providing "only documents located within responsive records. Furthermore, there is no relevant difference between a request for 'any record' and a request for 'all records.'"
By letter dated February 28, 2014, Mr. Elkins asserted that the County Attorney's Office "could have said, we are unclear or the record is too voluminous" rather than producing "more records than requested in the form[] of copies and forc[ing] the requester to pay for the duplicate and non-responsive copies." Mr. Elkins maintained that his request described the documents and they were "properly limited in volume to only the records bearing case numbers where service was performed." Noting that "any record" is a singular phrase whereas the phrase "all records" is plural, Mr. Elkins advised that "a record bearing a case number is all that was requested because that was all that was needed to create a summary desired by the requester. " In responding to Mr. Hendricks' argument regarding the definition of "record," Mr. Elkins quoted the definition of "public record" codified at KRS 61.870(2) and further observed that "use of the word 'file' is [commonplace] in the practice of law, public or private," and that "when one requests a copy of a 'file' it is known that each and every paper is to be copied. Anything short of each and every page, such as only a record bearing a case number, must be less than the whole file[.]" Finally, Mr. Elkins also identified ten cases that were allegedly nonresponsive.
In reply, Mr. Hendricks acknowledged that seven of the cases were nonresponsive, three (identified as 2, 3, and 10) of which appeared "to show no involvement of Clark County or the County Attorney's office." According to Mr. Hendricks, "[i]t is possible that this case heading was a typo. I have been unable to locate any record bearing this number[.]" Mr. Hendricks advised that "if Mr. Elkins will bring these documents to the Clark County Attorney's office, we will review the documents and issue a refund if the documents were provided in error." Similarly, the case identified as 4 "appears to be a case practiced by Mr. Elkins' former partner John Keeton" and Mr. Hendricks advised that he was "honestly unsure of why any documents with this case number were provided to Mr. Elkins, though it may be a case that is referenced in another Child Support case." The cases identified as 5, 6, and 8, were all foreclosure cases "in which the County Attorney's office filed an Answer," but Mr. Hendricks confirmed in each instance that a review of Mr. Elkins' list "indicates that this was not one of the records requested." Mr. Hendricks explained why the cases identified as 1, 7 (a case with issues that were similar to issues raised in another case requested, making it "likely that some documents were placed in both records"), and 9 were, in fact, responsive to Mr. Elkins' request and included among the records provided. The County Attorney's Office agreed to provide a refund to Mr. Elkins for all of the copies provided in error; accordingly, one could argue that most, if not all of the justiciable issues which prompted this appeal have been resolved.
The "final point of interest," Mr. Hendricks observed, is Mr. Elkins' argument that the County Attorney's Office could have responded that his request was too voluminous or misunderstood, a "line of reasoning that seems to be directly contradicted by the later argument that 'the documents were described and properly limited in volume to only the records bearing case numbers where service was performed. . . ." Quoting 95-ORD-49, Mr. Hendricks noted the often cited principle, "that '[a]n open records question should not be drawn by artifice and cunning to create a trap for the unwary public agency. '" Mr. Elkins provided a list of 390 cases and was "provided with a copy of all relevant documents found within responsive records. In essence, Mr. Elkins received exactly what was requested by him." With the limited exceptions noted above, which represent a very small percentage of the 390 cases relative to which Mr. Elkins requested "any record," and for which the County Attorney's Office has agreed to reimburse Mr. Elkins, just as he requested, this office agrees. The record on appeal is devoid of any evidence to suggest bad faith on the part of the agency.
The County Attorney's Office did not deny Mr. Elkins' broadly framed February 5 request, in part or in whole, nor did the agency request additional time in which to comply per KRS 61.872(5) notwithstanding the potential number of responsive public records; rather, the agency made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as required under 95-ORD-96, and promptly notified him in writing of the reasonable costs 2 associated with copying all existing responsive public records per KRS 61.880(1) and 61.872(4). It also complied with KRS 61.872(4) in providing contact information for the custodians of the records not in the possession or custody of the County Attorney's Office. In arguing that the County Attorney's Office should be required to refund the $ 526.00 associated with production of documents and DVDs/CDs that were not requested, a position which is premised on his belief that the agency's response was overinclusive, Mr. Elkins implicitly relied upon KRS 61.880(4), pursuant to which:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
On several occasions, the Attorney General has determined that public agencies "improperly equated an obligatory search for [responsive public records] with a request for nonobligatory research to be performed." See 02-ORD-150 (commingling of requests and volume of records provided to requester precluded her from conducting her own meaningful review); 06-ORD-117; 07-ORD-105; 08-ORD-032. This office concluded that a public agency subverted the intent of the Act, short of denial, by commingling nonresponsive public records with responsive public records, thereby creating "unnecessary impediments to effective inspection, " and "by asserting that it had no duty to produce only responsive records." 08-ORD-032, p. 4. However, this office also maintained "that public agency employees are not required to provide instruction in understanding the meaning or import of information which appears upon records produced." 02-ORD-150, pp. 7-8; 07-ORD-105; 08-ORD-032. In sum, the agency's "efforts [including the failure to issue a timely written response] fell short of the statutory requirements codified at KRS 61.880(1)." 02-ORD-150, p. 8. Noting that KRS 61.880(1) is unambiguous, and "requires the agency to produce records responsive to an open records request formulated with sufficient specificity to enable the agency's custodian of records to locate and retrieve those records," in 07-ORD-105 the Attorney General reached the same conclusion. Id., p. 6, citing Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008) 3; Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996).
The facts presented are distinguishable in this critical respect. Not only does the record on appeal "not conclusively establish intent" on the part of the agency to impede Mr. Elkins' inspection of the records, it lacks any evidence to suggest any such intent on the part of the County Attorney's Office. Said agency did not dispute having a duty to provide only responsive public records nor did it misconstrue Mr. Elkins' request as a "request for nonobligatory research to be performed." Rather, the County Attorney's Office issued a timely written response and produced all existing responsive public records. Unlike those of the agencies whose actions were challenged in the decisions referenced above, its efforts did not fall short of the requirements codified at KRS 61.880(1) nor did they subvert the intent of the Act within the meaning of KRS 61.880(4).
Inasmuch as Mr. Elkins apparently resides in the county where the records are located, the County Attorney's Office was authorized to require inspection of the records prior to providing copies per KRS 61.872(3) even assuming that his description was deemed "precise." However, the agency opted to exceed its duty under the Act by providing the requested copies without requiring Mr. Elkins to conduct on-site inspection first. Given that Mr. Elkins asked to "inspect and[/]or copy" the records described, then specifically asked for "a copy any record bearing such case number, " and finally, asked for the "requested record in all other cases," the County Attorney's interpretation of his request, when viewed in context, was entirely reasonable as to both format and scope. Mr. Elkins' belated explanation of his purpose in submitting the request, other clarifications regarding the content, and opinion regarding the perceived intent of the agency do not alter this determination as it was correct in asserting that his request was more broadly framed. See 13-ORD-015 (analysis of the adequacy of description "is confined to the four corners of the request").
By advising that "identifying any particular case on the attached list and indicating that there has been no service performed by the County Attorney's office" would be "acceptable," Mr. Elkins was essentially asking the agency to compile a list or create a record, neither of which is required under the Act. Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. In sum, the Open Records Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 02-ORD-165, p. 4, quoting 96-ORD-251. Rather, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. See KRS 61.871, KRS 61.872(1), and KRS 61.872(2).
This office finds equally unpersuasive Mr. Elkins' position that "any record" or "all records" are not synonymous or at least functionally equivalent. A lengthy discussion of semantics regarding this elementary principle is unwarranted. It suffices to note that "any and all" is a phrase of common usage, as evidenced by the regularity with which requesters in varying contexts use "any" and "all" interchangeably. Further support for the agency's interpretation that said terms "are a distinction without a difference" is found in the definition of "any": "One, some, every, or all without specification." The American Heritage College Dictionary, 64 (4th ed. 2002). The County Attorney's Office reasonably interpreted Mr. Elkins' request as encompassing any/all existing public records in the possession or custody of the agency "bearing such case number, for any case on the attached list...." To the extent a relatively minimal number of cases were inadvertently provided, the County Attorney's Office has agreed to remedy its error as Mr. Elkins requested. Nothing else is required.
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 D. ElkinsBrian N. ThomasJohn M. Hendricks
Footnotes
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