Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Louisville-Jefferson County Metro Government (LMG) violated the Open Records Act in its disposition of a request for records and information relating to LMG's parking authority. For the reasons that follow, we find that LMG procedurally violated the requirements of the Act but did not subvert the intent of the Act by providing records 20 (twenty) business days after its initial response and providing a detailed explanation for delay.
By email submitted to Louisville Parking Authority of River City (PARC) on July 24, 2017, Gregory Butrum made the following requests:
1) I would like any contract and or agreement, or evidence of same, that exists between the City of Louisville, and PARC, that PARC contends authorizes it to enforce parking tickets, [through] fines, shoes, or tows.
2) I would like to know whether the monopoly PARC enjoys, to enforce the parking code, was competitively bid, and if so, I would like to see PARCs bid. If not, I would like to see any documents showing how PARC obtained the monopoly, including letters back and forth between PARC and any City official.
3) I request copies from 5/25/17 to 7/25/17 of appeals of tickets filed with PARC.
4) I request copies of the last 100 collection letters sent out by PARC.
5) I would like a copy of PARCs graduated penalty rates, showing the rates and how they are determined, and I would like any documents show who or what entity created it. I request any documentation showing the City was involved in setting the penalties for late payment, and if the City was not involved in setting the rates, any documents (emails, letters, internally in PARC) discussing what rates PARC would issue as penalties for late payment.
6) I would like documents showing, for PARCs last fiscal year: A) how much money it collected from persons or entities for alleged parking violations; B) I would like documents breaking down the money collected by violation claimed; C) I would like documents breaking down the money collected by action taken by PARC (ticket, letter, towing, shoe) D) Of the money collected, I would like documentation showing how much was distributed to the City of Louisville, and how and when those distributions occur.
7) I need documentation PARC claims authorizes it to tow or shoe a vehicle, for its owner not timely paying parking fines, prior to PARC obtaining a judgment.
8) I would like documentation indicating whether PARC has been sued, by an individual or a class, for any anti trust violation, Sherman and or Clayton violation, violation of the provisions of the Kentucky Consumer Protection Statute, or 42 USC 1983, or any other reason except for personal injury.
On July 28, 2017, Jacinta Scruggs, Open Records Specialist Intake, LMG, responded to the requests:
The public records you seek are in active use, in storage or not otherwise readily available. Due to the nature of the request, and the amount of data being requested, the Parking Authority of River City has advised that your records will be available on or before Tuesday, September 26, 2017.
Mr. Butrum appealed LMG's response on August 9, stating, in pertinent part: "I appeal the City's denial/delay, and request you issue an opinion the City is in violation of the Commonwealth's Open Records law."
By letter dated August 25, 2017, Paul V. Guagliardo, Assistant Jefferson County Attorney, responded on behalf of LMG. LMG contended that requests 1, 2, 5, and 7 are requests for information and that those requests required "thoughtful interpretation to fully determine what he was requesting. " Attached to LMG's response was a letter from Ms. Scruggs, also dated August 25, which responded to Mr. Butrum's requests and provided the available responsive records. That letter also denied the existence of records responsive to two of the requests, or subparts thereof.
Analysis : 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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. "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); 01-ORD-140. For this reason, the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4.
KRS 61.872(5) is the only provision of the Act that authorizes postponement of access to public records beyond three business days, and it provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " As Mr. Butrum emailed his request at 8:34 p.m. on July 24, we would reasonably consider that it was not received by LMG until business hours on July 25. On the third day after July 25, LMG provided its initial response and set a date certain (September 26) on which the records would be available. However, LMG failed to specifically invoke KRS 61.872(5) as the statutory basis for delaying production, did not state whether the records were in active use, were in storage, or were otherwise not available. The "boilerplate" language cited in LMG's initial response merely restates the statute's wording and does nothing to enlighten the public as to why the requested records were not produced. Further, that response did not provide the detailed explanation required by KRS 61.872(5) as to why an anticipated 59-day delay was needed before LMG could produce the requested records. 15-ORD-029, p. 3 (finding a violation of KRS 61.880(1) as merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause . . . for further delay"). LMG thus committed multiple procedural violations of the Open Records Act.
More substantively, LMG's response to the appeal states that the "eight requests required some thoughtful interpretation to fully determine what it is he was requesting. " From the context of that response, this office understands that it was this "interpretation" that was reason for delay. LMG took the position that Requests 1, 2, 5, and 7 are "arguably requests for information and require LMG [to] do research to identify which terms or qualifiers are relevant to a reasonable search, and which are gratuitous." 1 In these circumstances, we believe that KRS 61.872(3)(a) and (b) are relevant to our analysis.
KRS 61.872(3)(a) and (b), state:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The Open Records Act thus contemplates records access 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. A requester who 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. 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 records, without first 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; 97-ORD-46; 03-ORD-67.
Mr. Butrum, according to the record on appeal, has his law office in Jefferson County, and could have exercised his right to inspect the records prior to requesting copies of the records. As Mr. Butrum requested copies without first inspecting the records, it was necessary for him to satisfy the additional burden required by KRS 61.872(3)(b). Whereas KRS 61.872(2) requires, generally, that the requester "describe" 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. Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). 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). 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. 97-ORD-46, p. 3; 03-ORD-067. As four of Mr. Butrum's requests arguably required interpretation, they did not describe the requested records in definite, specific, and unequivocal terms, and so the records were not "readily available" in the agency, pursuant to KRS 61.872(3)(b). Despite the broadly worded requests, and requests for information, LMG has provided records for all but parts of Requests # 5 and # 6, and has provided the information requested by Mr. Butrum. 2 For those parts of Request # 5 & # 6 where LMG did not have responsive records, it has affirmatively so informed Mr. Butrum in writing. See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 14-ORD-107; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence").
Although LMG provided, on appeal, a detailed explanation justifying some delay in providing responsive records to Mr. Butrum, that explanation did not excuse the actual delay in providing records responsive to Requests 3, 4, 6, and 8. LMG did not identify those requests as requiring research or interpretation and so those records should have been provided within three business days of receipt of the request. As LMG has provided those records, we will not further belabor this point. Other than the procedural errors cited herein, we cannot find that LMG violated the Open Records Act.
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.
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