Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Craig Stone initiated this appeal challenging the disposition of his July 1, 2014, "complaint" regarding the City of Bloomfield's "violation of the required notification of the Open Records policy as indicated in the 'Your Duty Under the Law' publication from the AG," a copy of which Mr. Stone attached to his letter of complaint. Mr. Stone's complaint was implicitly based on KRS 61.876, and subsection (2) in particular. 1 Kentucky Certified Municipal Clerk Jean M. Jury advised Mr. Stone, by letter also dated July 1, 2014, that the City has acted in compliance with "the 'required notification' as evidenced by the attached document which has been posted on the City's office bulletin board in City Hall at 141 Depot Street, Bloomfield, Kentucky. This document is and has been [publicly] accessible, for the sixteen years that I have been employed, during business hours. " Ms. Jury further observed that a copy of the referenced publication is "distributed to the mayor, city council, attorney and all committee or board members elected or appointed by the City" in accordance with KRS 65.055(1), along with a copy of "Managing Government Records," and signatory proof of receipt is obtained per KRS 65.055(2).
On appeal Mr. Stone challenged the City's perceived failure to "properly post" its Open Records Policy "in a 'prominent' location where the public can view it per the requirements of" KRS 61.876 as outlined in Your Duty Under the Law. In his view, "[s]ince the policy is posted inside of the building, then there should be some indication when the building is open. There are no regular business hours posed on the exterior of the building for the public to see." Mr. Stone "would expect" a public agency to post its policy on the exterior of the building, "or where visible to the general public 24 hours a day being that nowhere in the rules is the public restricted to making fax requests during regular business hours. " Mr. Stone acknowledged that the City has the policy on its website, but questioned whether the location is "prominent" given that it cannot be found on the "main screen." Additionally, Mr. Stone complained that the City did not provide its fax number on the request form so a member of the public may be unaware of the option to submit a request by fax. He also challenged the "way the form is written" insofar as it "makes it seem as if you can only view records after a request is made, not that you can walk in and have the ability to view them that day." Finally, Mr. Stone noted that the "header at the top of their form," USES OF DATA, contains general statements regarding the kind of information that will be released, questioning whether this kind of "blanket statement" is permissible under KRS 61.878(1). 2
The Attorney General has long recognized that KRS 61.876 is aimed at ensuring that each public agency "will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request." 94-ORD-12, p. 4. A public agency "must adopt rules and regulations pertaining to its open records policy, or it may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to its particular needs. It must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them[.] . . ." Id. OAG 78-340; 13-ORD-074. With regard to subsection (2) in particular, this office has recognized that "[w]hile the spirit of the Open Records law mandates the broadest possible dissemination of an agency's rules and regulations, the letter of the law does not specifically designate where the rules must be posted. " 92-ORD-1567, p. 3; 93-ORD-83; 06-ORD-087; see 03-OMD-250 (noting that "KRS 61.876(2) provides that such rules and regulations 'shall be displayed in a prominent location accessible to the public,' but does not specify a particular location"). In the absence of a statutory definition, words must be "construed according to the common and approved usage of language." KRS 446.080(4). The word "prominent" is defined as "[i]mmediately noticeable; conspicuous " and "[w]idely known; eminent." The American Heritage College Dictionary 1115 (4th ed. 2002) (emphasis added). In determining whether a special meeting notice was posted in a sufficiently "conspicuous" place to satisfy KRS 61.823(4)(c) (then codified as (b) ), this office engaged in reasoning which, given the synonymous definitions of "conspicuous" and "prominent, " applies with equal force on the facts presented, notwithstanding the different contexts in which the questions arose.
In that appeal, the complainant maintained that the Nortonville City Council violated KRS 61.823(4)(c) (then codified as (b)) in failing to post a notice of a special meeting on the door of the building where the meeting was held as well as the door of the building which housed the agency's headquarters (one and the same in that case), to ensure that the notice was accessible to the public for the 24 hours preceding the meeting. The complainant proposed that the City Council "'post the notices out on the front door that houses [sic] the city offices including where the City Council meets . . . [so that] when the doors are locked at 4 pm in the evening, people can still see the notice. '" Id., p. 1. The City Council rejected the assertion that the only conspicuous place to post the written notice was on one or more of the outside doors of City Hall, noting that no authority was cited for that proposition. In that case, it was "an established practice to post all notices on the bulletin board in the main office of the city building" which served as "'the primary location for members of the general public to transact business with the City.'" Id., p. 5. While there were, "no doubt, more conspicuous places where notice of [a] special meeting of the City Council might [have been] posted, " this office ruled in favor of the agency because the practice of posting notices on a public bulletin board was consistent with the statutory requirement. Id. See 10-OMD-135.
In reaching that conclusion, the Attorney General reasoned that the General Assembly "has not particularized a place on which notice of special meetings must be posted, and, absent proof of an attempt to conceal such notices, we believe that discretion rests with the public agency to determine what constitutes a conspicuous place. " Id. Until such time as the General Assembly declares that special meeting notices must be posted on the doors of the buildings in which special meetings will be held and the buildings that house the agencies' headquarters, the Attorney General determined, "reasonable discretion must be said to reside with public agencies in making this determination." Id. This office further held that a publicly accessible bulletin board is "conspicuous, " within the common usage of that word, "notwithstanding the fact that more conspicuous places may be available or the fact that it may not be conspicuous to the public for the full twenty-four hours preceding the special meeting. " Id., p. 6. Likewise, the "City's office bulletin board in City Hall" is a sufficiently "prominent" location to comply with KRS 61.876(2), particularly when the rules and regulations are posted online as well. In the absence of any proof "of an attempt to conceal" the rules and regulations adopted per KRS 61.876 or a statutory requirement that notices must be posted in a particular location to comply with KRS 61.876(2), this office does not find that a violation occurred. See 03-OMD-250; 10-OMD-135. Nothing in the Open Records Act requires a public agency to post either said rules and regulations or its regular business hours on the outside door of its office.
With regard to Mr. Stone's complaint regarding the City's omission of its fax number from the posted rules and regulations, KRS 61.876 is again silent. Insofar as KRS 61.872(2) specifies that a request made under the Open Records Act "shall be hand delivered, mailed, or sent via facsimile to the public agency, " inclusion of such information would certainly be consistent with the stated legislative intent of KRS 61.876, particularly since KRS 61.876(1)(d) expressly requires a public agency to include the "procedures to be followed in requesting public records, " and those items listed at KRS 61.876(1)(a)-(d) are illustrative rather than exhaustive. However, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002) (citation omitted). Although Mr. Stone's point in this regard is well-taken, this office has no basis upon which to find that the City violated the Act by failing to provide its fax number on the rules and regulations adopted and posted under KRS 61.876. Likewise, Mr. Stone's complaint regarding the fact that said rules and regulations "make it seem" like you must submit a written request before inspecting public records is without merit. KRS 61.872(2) expressly authorizes the official custodian of a public agency to "require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." Further discussion of this point is unnecessary.
Mr. Stone's final complaint pertained to the section of the rules and regulations entitled, "USES OF DATA," which provides:
ALL DATA GATHERED BY THE CITY OF BLOOMFIELD IS TO BE TREATED AS CONFIDENTIAL. No information will be furnished to anyone except that which is necessary for the operation of the city or water company. Specifically, lists of any kind (verbal or written) will not be furnished to anyone. . . . Public Record information is available to anyone and will be furnished upon request at the address below. Response to information requested under the Open Records Law will be handled as required by law.
(original emphasis.) The City did not address Mr. Stone's complaint in this regard. However, any record that is properly characterized as a "public record" within the meaning of KRS 61.870(2) is "presumed open unless the agency satisfies its burden of proving the records are exempt from disclosure per KRS 61.878(1)(a) through (n)." 13-ORD-085, pp. 2-3 (original emphasis). See KRS 61.871 and 61.872. KRS 61.880(1) provides that a public 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." 3 (emphasis added). In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. Presumably for this reason, KRS 61.876(1) does not require a public agency to provide information regarding the accessibility of specific records in the rules and regulations adopted thereunder.
The quoted section is contrary to relevant provisions of the Act insofar as it seemingly attempts to peremptorily guarantee the confidentiality of "all data gathered by the City" rather than advising that each request will be dealt with individually and with the requisite specificity. However, the section also seems to contradict itself by then advising that "Public Record information" is publicly accessible and requests made under the Open Records Act will be handled in accordance therewith. The City is correct in asserting that a public agency is not required to compile a list (or create a record) although existing public records containing "data" would be subject to disclosure unless exempt under KRS 61.878(1). See 11-ORD-026. In order to ensure that its rules and regulations are "in conformity with the provisions of KRS 61.870 to 61.884" per KRS 61.876(1) , the City must clarify which "data" is "confidential," and on what legal basis that statement is premised. With this exception, the rules and regulations (or "policy") in dispute satisfy the requirements of KRS 61.876. Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records.
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies.
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
(3) The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies.
2 In response to Mr. Stone's appeal, the City Attorney, in relevant part, noted that the City's website has a page entitled, "Contacts," which lists the mailing address, office hours, telephone number and fax number of City Hall and provides an e-mail address. She also reiterated that the rules and regulations are posted "conspicuously on the bulletin board in plain sight at City Hall. The records of the City are open for inspection during normal business hours, which hours are now posted on the exterior of the building." Should this office determine that its procedure for making requests under the Act requires amendment, she concluded, "the City will make any and all changes necessary to accomplish that."
3 If "data" refers to personal information "the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy," the City must instead cite KRS 61.878(1)(a) and identify the specific records, or information being redacted from records, in a timely written response upon receipt of specific requests if appropriate.