Request By:
Thomas Fox
Kim Richards
John Casey McCall
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of West Buechel violated the Open Records Act by requiring a requester to use a preprinted form. We find that requirement to be a violation of the Act, and we further find that the preprinted form did not comply with the Act, as it required requesters to certify that they are not involved in litigation with the City.
Thomas Fox submitted a request for records to Kimberly R. Richards, Clerk-Treasurer, City of West Buechel, on February 2, 2017. The request 1 was submitted by fax and email. On February 6, 2017, Ms. Richards responded to Mr. Fox's request: "In regards to your open records request of February 2, 2017, please resubmit your request so that it is in compliance with the City's Public Records Policy." Mr. Fox appealed this denial to the Office of the Attorney General and asked this office to review "Whether a public agency may unilaterally and without statutory authorization thus restrict access to public records. Specifically, whether a public agency may require the use of a specific preprinted form. " Attached to the appeal was the "City of West Buechel Policy Relating to Open Records" and a form titled "City of West Buechel Public Records Request." Ms. Richards responded to the appeal by letter dated February 20, 2017, stating: "The City has notified Mr. Fox on four occasions of the revised policy and supplied him with blank request forms for his use when making requests. . . Mr. Fox has refused to comply with the policy, specifically refused to make his requests on the City's form."
Required Use of Form
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. Even more directly to the point, 94-ORD-101, stated:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
94-ORD-101, p 3.
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) . 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; 15-ORD-013, 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 has affirmed its denial of Mr. Fox's request on the basis that he did not use the preprinted form. We find the City's denial of Mr. Fox's request to be a violation of the Act.
Certification of Non-Litigation Affiliation
We note that the "Public Records Request" form required by the City also requires the requester to "certify that I am not, nor is any party I represent, involved in litigation, in a judicial or administrative forum, with the City of West Buechel or a public agency to which the requested record is relevant." This required certification is in contradiction to the Open Records Act.
KRS 61.878(1), regarding records exempted from the Open Records Act, states in relevant part:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.] (Emphasis added).
In 16-ORD-176, a public agency interpreted the language of KRS 61.878(1), as foreclosing a litigant from using the open records procedure to obtain any relevant materials outside the civil discovery process. That was an incorrect reading of the statute. The presence of litigation, and the availability of records through discovery, does not relieve a public agency of its open records duties. A litigant, or an attorney representing a litigant, "stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of litigation provides no reason to grant or deny his request to inspect public records. " OAG 82-169.
KRS 61.878(1) contains no exemption from the Open Records Act based on the mere presence of litigation. In
Dept. of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010), the Kentucky Supreme Court reaffirmed an earlier opinion determining that "the gist of [KRS 61.878(1)] is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records , to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pre-trial discovery. "
Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 863 (Ky. App. 2001) (emphasis in original). Accordingly, the City may not withhold requested records merely because they might also be obtained through civil discovery. See also 96-ORD-138, OAG 89-65, OAG 82-169 (although open records provisions should not be used by parties to litigation as a substitute for requests under discovery, there is no indication in the Open Records Act that an agency's obligations under the Act are suspended in the presence of litigation). The City's open records form does not comply with the Act due to its requirement that the requester not be involved in litigation with the City.
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 must 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 request was for:
. Each City Financial Statement for FY 2015-2016, whether monthly, quarterly or annual, required by KRS 91A.020, KRS 91A.040, and KRS 424.220;
. The annual city audit report for FY 2015-2016 required by KRS 91A.040, and;
. All quarterly budget reports for FY 2015-16 and FY 2016-17, as required by KRS 91A.030.