Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Shelbyville ("City") violated the Open Records Act in responding to the open records request of Lawrence Trageser ("Appellant"). For the reasons stated below, we find that the City violated the Open Records Act by initially informing Appellant that he had to submit his request on a preprinted form, and by failing to inform Appellant, in writing, of its decision to comply with his request within three business days, and also by offering copies of the requested records rather than allowing him to inspect the records in person during the City's regular business hours.
On April 10, 2019, Appellant hand-delivered an open records request to the Shelbyville City Clerk's office asking for the personnel files of a former Shelbyville police officer. The written request also stated that he "invokes KRS 61.872(3)(a) upon agency's response." 1 Appellant was informed that he must submit his request on the City's own "Open Records Request Form." On that same day, the City Clerk emailed Appellant, stating: "I have an attachment form for the open records request that will need to be filled out in order for us to accept your request. Once this form is filled out in it's [sic] entirety, I will forward this to the correct department." On April 15, 2019, Appellant filed his appeal with this office, arguing that the City failed to comply with his open records request because he did not submit his request on the City's form.
Steven C. Gregory, Shelbyville City Attorney, responded to the appeal on behalf of the City. The City admitted that the Clerk had sent Appellant the email requiring the use of the request form, but stated that the City nevertheless made copies of the requested records. The City Clerk contacted Appellant via telephone on April 18, 2019, to advise him that the copies were ready to be picked up. It was during this telephone conversation that the City learned of Appellant's appeal. The City further stated that the records remain available for Appellant's review, but that he had not come to the Clerk's office to do so.
The open records request form attached to the appeal has blanks for a requester to complete with his/her name, date, mailing address, phone number, fax number, email address, requested records, whether the request is for a commercial or non-commercial purpose, and a description of the purpose, if commercial. The form also states: "I hereby certify the information provided in this request is true and accurate," with blanks below that line for signature and printed name.
Analysis . At page 2 of 94-ORD-101, the Attorney General stated:
The 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 following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
Id. This position echoed an early open records opinion in which the Attorney General stated that, "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 95-ORD-60, 95-ORD-33. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) 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.
The only exception to this rule is found at KRS 61.874(4)(b), 3 permitting public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a). 4 In 02-ORD-89, the Attorney General was asked to review a preprinted form used by a property valuation administrator that included a section in which the requester was asked to explain his specific purpose and sign a "Non-Commercial Applicant's Certified Statement." We determined that the request form "demanded more than is required by KRS 61.872(2)," thereby subverting the intent of the Open Records Act, and concluded that the form "creates a potential chilling effect on submission of open records requests to PVAs that is inconsistent with the basic policy of the ? Act codified at KRS 61.871." 02-ORD-89, p. 9. 5 We expressed the view that the PVA's form should be modified by requiring the applicant to explain his purpose only if he checks off "Commercial," as opposed to "Non-Commercial" in the "Anticipated Use of the Information" section, and by deleting the "Non-Commercial Applicant's Certified Statement," for which no legal authority exists, in its entirety.
Although no statutory authority exists for requiring the applicant to provide his mailing address, email address, telephone number, or fax number, this information is also requested in form L2001, "Open Records Request to Inspect Public Records, " approved by the Finance and Administration Cabinet, and serves to facilitate communication between the parties as well as a timely agency response. While a request should not be denied simply because the applicant refuses to furnish this information, we have found that the inclusion of these requests does not constitute a subversion of the intent of the Act. See 03-ORD-086, n. 2.
By the same token, no authority exists for the City's request form to require the requester to attest that "I hereby certify the information provided in this request is true and accurate." We can see no reason why this statement is needed for a non-commercial requester and believe the form should be modified appropriately so that a non-commercial requester is not required to make this certification. The remaining sections of the City's open records request form are allowed by KRS 61.872(2), 94-ORD-101, p. 2, but the request is not to be refused if a requester does not use the City's form.
At page 3 of 94-ORD-101, the Attorney General observed:
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.
Continuing, this office noted that the agency "violated the Open Records law when it ignored the application or request to inspect public records because it was not submitted on a particular form devised by the public agency, " and that the agency "was under a legal obligation to respond to the request within the statutorily mandated time frame ? ." Id. at 3-4. Thus, while a public agency may request certain additional information not specifically set forth at KRS 61.872(2) (mailing address, email address, telephone number, fax number), compliance with the records request shall not be contingent upon the requester providing that information, nor upon the use of a form provided by the public agency.
Although the City verbally notified Appellant on April 18, 2019, that the requested records were ready to be picked up, it failed to comply with KRS 61.880(1) by notifying Appellant, within three "business" days, in writing, of whether it would comply with his request. 6 The telephone call to Appellant on April 18 was neither in writing nor within the three-day response period. Likewise, Appellant's request, under KRS 61.872(3)(a), was to inspect the records during the regular business hours of the agency, rather than receiving the records by mail pursuant to KRS 61.872(3)(b).
We thus find that the City subverted the intent of the Act in initially requiring Appellant to complete the open records request form, and by including the requirement in the form that it be certified by Appellant, a non-commercial requester; that the City violated KRS 61.880(1) by failing to notify Appellant in writing within three days whether it would comply with his request; and violated KRS 61.872(3)(a) by offering copies of the requested records rather than allowing Appellant to inspect the records during the regular business hours of the City. The City must make immediate provisions to allow Appellant to inspect the requested records.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.872(3)(a) states that a person may inspect public records "during the regular office hours of the public agency[,]" as opposed to KRS 61.872(3)(b) that permits a person to inspect the public records "[b]y receiving copies of the public records from the public agency through the mail."
2 KRS 61.872(2) states:
Any 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. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 A public agency may require a certified statement from a requester for a commercial purpose pursuant to KRS 61.874(4)(b), which states in pertinent part:
The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency.
4 KRS 61.870(4)(a) states:
"Commercial purpose" means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
5 KRS 61.871(1) states:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
6 KRS 61.880(1), in pertinent part, states that:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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.