Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Tyler Fryman initiated this appeal by letter dated August 19, 2015, challenging the disposition by the City of Frankfort Police Department (the Department) of his July 10, 2015, written request for "an opportunity to receive a copy of the following items":
(a) Any and all purchase orders, receipts, or other forms used to acquire items through the DoD's "1033 Program" ;
(b) Any and all emails to and from any member of the Police Department that contain the phrase "1033";
(c) Any complaints against any employee of the Police Department and, if any, the final recommendation made by the Chief or [his] supervisor from Jan 1, 2012 to July 7, 2015;
(d) Any and all documents, to include but not be limited to budgets, drafts, memos, Powerpoint presentations (or any presentations made using other software), or emails that were made referencing "overtime."
If any of the documents requested "are available in electronic form," Mr. Fryman "demanded that the documents be provided in the same original electronic format as required by [KRS 61.874(2)(a)]." He further asked that if "access to the records I am requesting will take longer than [three business days per KRS 61.880(1)], please contact me with information about when I might expect copies." 1
On appeal Mr. Fryman alleged that City Clerk Chermie Maxwell, Records Custodian, 2 declined to respond to his request until he completed the agency's preprinted form, which subverted the intent of the Open Records Act or violated it. Mr. Fryman faxed his request to the Department on Friday, July 10, 2015. Eight working days later, on Thursday, July 23, he "went to inspect the Department's response and any documents that might have been ready." However, the Department referred Mr. Fryman to the City Clerk. On that same day, Mr. Fryman visited the City Clerk's Office. The City Clerk and City Manager Tim Zisoff advised Mr. Fryman that if he wanted a response, he needed to complete "the provided Open Records request form." Citing prior decisions of this office disapproving the use of preprinted forms requesting information beyond that required under KRS 61.872(2), Mr. Fryman observed that he provided his name and signature and described the documents being requested. Mr. Fryman argued that nothing else is required.
Upon receiving notification of Mr. Fryman's appeal from this office, City Attorney Robert C. Moore responded on behalf of the Department. Mr. Moore observed that Mr. Fryman's request was received on July 13, 2015; it was "in letter format and did not include a return address or contact information." When he came to the Department to inspect any responsive documents, counsel advised, "he was instructed to see the Frankfort City Clerk, who is the Custodian of Records for the City." Mr. Moore quoted the "relevant language of Paragraph II(1) of the City's Open Records Policy," which provides that "[a]pplication forms for inspection of public records will be furnished on request by the City Clerk or the City Clerk's designee. Assistance in completing the form will be provided upon request." Counsel attached to his August 26, 2015, response a copy of the "Public Records Request Form used by the City of Frankfort," which "requires a person requesting information [records] to provide a name, address, phone number, the date of the request, a description of the records requested and to advise the City as to whether the records are to be used for a commercial purpose." 3 The Department maintained that its form "is consistent with the language of KRS 61.872(2), which provides that 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. " Counsel asserted that "information requested on the Public Records Request Form is only to enable the City Clerk to efficiently respond to records requests, and will not have a 'chilling effect' on any person seeking to obtain records from the City."
The Department advised that the "City Clerk was initially unable to notify Mr. Fryman that he was required to use the City's application form ," as he failed to include any contact information in his letter to the [Department]." (Emphasis added.) Mr. Fryman's request letter "did not include either a street address, post office box, email address or fax number. After struggling to determine the best way to contact Mr. Fryman about his request, the City Clerk attempted two different times to provide Mr. Fryman with the City's Open Records Request Form by faxing it to him with a cover letter." 4 Counsel advised that the City Clerk directed her July 20, 2015, letter to Mr. Fryman using the fax number that appeared on his request. However, the City Clerk was unsuccessful in attempting to fax a response to Mr. Fryman; he later advised the City Clerk that it was a commercial fax number and not his personal fax number. Counsel further noted that Mr. Fryman requested that documents available in electronic format be provided in that format. However, Mr. Fryman did not provide an e-mail address to which any records could be forwarded. Based upon the foregoing, the Department maintained that its response to Mr. Fryman was entirely proper. This office respectfully disagrees.
Any local policy or procedure "that deviates from the specific requirements of the Open Records Act constitutes a violation of the Act. This includes a requirement that the requester utilize an open records request form developed by the agency." 07-ORD-257, p. 5 (to the extent policies and procedures of the city "do not mirror the statutory requirements" of the Open Records Act "they are invalid and have no force and effect" as public agencies "cannot, by ordinance or any other legislative device regulate access to public records in a manner which conflicts" with provisions of the Act); 09-ORD-170 (reaffirming line of authority recognizing that General Assembly preempted "the field of the inspection of public records" by enacting the Open Records Act) . Resolution of this appeal turns on KRS 61.872(2), pursuant to which "[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. " Accordingly, this office has consistently recognized that a public agency "may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains" the applicant's signature, the applicant's name printed legibly, and a description of records to be inspected. 94-ORD-101, p. 4 (emphasis added); 11-ORD-080. "Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information." 07-ORD-257, p. 6.
When asked to determine whether a request was adequate, this office held that even if "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. OAG 76-588; 06-ORD-197; 10-ORD-106. A public agency cannot reject a request, or avoid its duty under the Act, merely because the requester did not use a particular form or employ specific legal terminology. 01-ORD-247, p. 3; 10-ORD-122 (to the extent public agency maintained that requester was required to complete a particular form provided on its website, its policy made it more difficult to inspect a public record than it was before the Act was enacted and was "contrary to the letter and spirit" of the Act); 15-ORD-013. Nor is the applicant's "failure to utilize the 'formal process' established by the [public agency] " a proper basis for rejecting a request to inspect public records. 04-ORD-048, pp. 4-5; see 95-ORD-33 (a requester is not required to state why he is asking to inspect records or to produce an I.D. in order to see records). Mr. Fryman submitted a request which, in all particulars, complied with KRS 61.872(2), and specifically referenced the "Kentucky Open Records Act KRS 61.872 et. seq ."
As recently as June 2015 this office was asked to address whether a public agency was permitted to require a valid address prior to processing Mr. Fryman's request for all documents relating to a specified incident. Relying upon the literal terms of KRS 61.872(2) and this well-established line of authority, the Attorney General reasoned:
The [agency] did not require Mr. Fryman to use a specific form or terminology but did require a valid address before processing his request made "[u]nder the Kentucky Open Records Act § 61.872 et seq." However, the General Assembly did not include a valid address for the requester among the items that a request made under the Act must contain per KRS 61.872(2). "[I]t 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). See Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008) (declining to add a particularity requirement to KRS 61.872(2) where none exists). While a valid mailing address might be a practical necessity in cases where a requester specifically asks to receive copies by mail only rather than exercising his right to conduct onsite inspection of the records per KRS 61.872(3)(b), Mr. Fryman asked to "inspect or copy" responsive documents and further clarified his preference verbally when asked to provide a valid address by telephone. As in each of the decisions above, this office must conclude that in the absence of a legal basis for imposing such a requirement, by insisting that Mr. Fryman provide a valid address the [agency] acted "contrary to the intent of the Open Records Act by imposing unauthorized requirements on records access." 95-ORD-33, p. 1.
15-ORD-098, p. 5. The instant appeal presents no basis to depart from the analysis found in 15-ORD-098 or the line of authority upon which that decision is premised.
Here, Mr. Fryman was advised that a particular form was required. Mr. Fryman asked for "an opportunity to receive a copy" of the records being sought rather than specifically requesting to "inspect or copy" the records though arguably he was expressing a desire to inspect responsive documents and then receive a copy upon request and payment in accordance with KRS 61.872(3) and 61.874(1). Notwithstanding this ambiguity regarding his preference, however, the fact remains that the Department was unwilling to provide him with a written response of any kind even after he appeared in person eight days after submitting his request. Rather, the Department advised that he was required to submit a completed Request Form before his request would be processed. The "Open Records Policy" upon which the Department relied on appeal 5 does not expressly require submission of the City's Request Form, but does indicate that said Form will be provided upon request, suggesting that a request will not be processed until a completed Form is received and, to that extent, is not valid. See 11-ORD-080 (agency violated KRS 61.880(1) in failing to respond to requests because requester did not comply with a policy requiring the submission of a request on a preprinted form developed by the agency).
The City Clerk and the City Manager advised Mr. Fryman that receiving a response was contingent on completing the designated Request Form and the Department has maintained that position; these facts are undisputed. The agency has also specifically asserted that requiring a requester to provide an address and telephone number is permissible. This position, as the foregoing line of decisions and 15-ORD-098 in particular, amply demonstrate, is without legal support. In requiring Mr. Fryman to complete a particular form, and provide information beyond that specifically authorized under KRS 61.872(2), the Department violated the Open Records Act, notwithstanding the City Clerk's otherwise reasonable efforts to communicate with Mr. Fryman regarding the status of his request. Given his expressed preference to receive any records available in electronic format in their original format, an e-mail address, though not required under KRS 61.872(2), was necessary from a practical standpoint and this office finds no error by the agency in this regard.
A party aggrieved by this decision may appeal this decision by initiating action in the appropriate circuit court under 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 The record is unclear as to how Mr. Fryman anticipated the Department could notify him of the need for additional time per KRS 61.872(5) if necessary, given that he did not provide any contact information. While such information is not statutorily required, the Department certainly needed a telephone number, e-mail address or mailing address in order to contact him as requested.
2 Pursuant to KRS 83A.085(3)(b), the city clerk is deemed the "official custodian" or "custodian" of records in accordance with the Open Records Act and required to perform the duties of same.
3 KRS 61.874(4) authorizes the public agency to inquire as to whether a requester has a commercial purpose in order to determine a reasonable fee based on the statutorily permissible factors.
4 Counsel provided this office with a copy of the City Clerk's July 20, 2015, letter advising Mr. Fryman that "requests must contain the name, address, and phone number of the requestor in order to be processed. We do not have the necessary information in order to respond to you. A response by email was requested; however, your email address is not listed."
5 This office was not provided with a copy of the referenced policy and therefore relies on the relevant language quoted in the agency's response.