Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Jeffersontown ("City") violated the Open Records Act or subverted the intent of the Act, short of a denial of inspection of records, within the meaning of KRS 61.880(4), in the disposition of Joe Spiaggi's October 11, 2019, request for "all information on Handycap [ sic ] Parking, ie: zoneing [ sic ], complaints, code, inforcement [ sic ], ciatitions [ sic ], and all other related records." 1 For the reasons that follow, we find that the City violated the Act and subverted the intent of the Act in delaying production of records.
Having submitted his written request to the city clerk on October 11, 2019, Mr. Spiaggi returned on October 17, 2019, for the requested records. On appeal, both Mr. Spiaggi and City Attorney Schuyler J. Olt set forth narratives of what happened on that occasion. Their accounts agree that Mr. Olt approached Mr. Spiaggi and told him the City had not fulfilled his request because it needed more information to determine what records he wanted. According to Mr. Olt, Mr. Spiaggi "immediately became angry and abusive, saying his purpose was to 'cause all kind of hell for Jtown' or words to that effect." According to Mr. Spiaggi, Mr. Olt stated: "[A]ll you want to do is cause trouble for us ? why should we help you ? we're not going to give you anything."
By his own account, Mr. Spiaggi "asked for another Open Records Request form, to clarify what [he] wanted," but the city attorney "told the clerk not to give [him] one." According to Mr. Olt, Mr. Spiaggi "continued his tirade," calling the city attorney "dummy" and poking a finger at his chest. It is undisputed that Mr. Olt directed someone to call the police to get Mr. Spiaggi to leave.
On October 18, 2019, City Attorney Schuyler J. Olt issued a written response to Mr. Spiaggi's request, stating: "This letter is in response to your request for information. Copies of responsive documents will be mailed to you on or before November 1, 2019. Copy costs are waived in this instance." Mr. Spiaggi initiated this appeal on October 23, 2019. In a follow-up letter to Mr. Spiaggi dated October 31, 2019, Mr. Olt stated: "Due to Mr. Fox [the city clerk] being out of the office, we are delayed in responding to your request. Copies of responsive documents will be mailed to you on or before November 11, 2019."
KRS 61.880(1) requires a public agency to respond to a request for inspection of records "within three (3) days, excepting Saturdays, Sundays, and legal holidays." Thus, even if the City did not understand Mr. Spiaggi's request, it was required to issue a written response by October 16, 2019. Its failure to do so before October 18, 2019, was a violation of the Open Records Act.
Pursuant to KRS 61.880(1), the agency's response must constitute a final disposition of the request. KRS 61.872(5) requires that if records are not produced for inspection within three days from receipt of the application, the public agency must give "a detailed explanation of the cause ? for further delay" as well as where and when the record will be available. The date given must be a "date certain, not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38 (emphasis omitted).
In its letter of October 18, 2019, the City did not state that any responsive records were "in active use, in storage or not otherwise available," as required by KRS 61.872(5), and failed to give any explanation of the cause for delay in its letter of October 18, 2019. Furthermore, the date of November 1, 2019, was not a date certain, as the City subsequently postponed fulfillment of the request until November 11, 2019. Thus, the October 18 response further violated the Act.
With regard to the City's letter of October 31, 2019, we note that a temporary absence of the records custodian does not constitute a sufficient cause for additional delay. "It is incumbent on the [City], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 04-ORD-008. In a response to this appeal, also dated October 31, 2019, Mr. Olt stated: "I was away from the office last week on a scheduled vacation, and Mr. Fox, our City Clerk, is on vacation this week. As we are the two primary responders to open records requests, we have not been able to complete the tasks." We cannot regard this circumstance as sufficient to excuse further delay. "The failure to have an individual available to timely process open records requests [is] inconsistent with the requirements of the Open Records Act. " 04-ORD-008.
Moreover, it is not evident from the record on appeal whether the City ever provided Mr. Spiaggi with any records. Accordingly, we find that the disposition of Mr. Spiaggi's request was untimely in violation of KRS 61.880(1), and the excessive delay subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4). Cf . 15-ORD-181.
Pursuant to KRS 61.872(2), "[a]ny person shall have the right to inspect public records. " KRS 61.872(3)(a) provides:
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 by mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The option whether to inspect records in person or to receive copies by mail rests with the requester, except that "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." 97-ORD-46. The statute does not allow a public agency to deny a requester the right to inspect records in person.
In its response to this appeal, the City stated: "Mr. Spraggi [ sic ] will get his documents as soon as we can pull them together. He MAY NOT come to City Hall to get them, given his very threatening behavior." In 09-ORD-028, we refused to hold "that a person's hostile attitude alone could annul his underlying right to obtain a public record." Furthermore, KRS 61.872(1) requires public agencies to make "suitable facilities ? available ? for the exercise of [the] right" to inspect public records. While the record on appeal establishes that an angry confrontation occurred on October 17, 2019, between Mr. Spiaggi and the city attorney, we find no indication of an imminent threat to public safety that might warrant permanently banning Mr. Spiaggi from City Hall. Thus, the City denied Mr. Spiaggi's right to inspect public records on public premises, in violation of KRS 61.872(1).
Finally, we address the legal sufficiency of Mr. Spiaggi's request. As written, the request is in part for "information" and in part for "records." The Open Records Act does not require public agencies "to provide a requester with particular 'information,' [or] to compile information, to conform to the parameters of a given request." 02-ORD-165. Where the request is for public records, however, the public agency must permit inspection of its records as long as the description is "adequate for a reasonable person to ascertain the nature and scope of [the] open records request."
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). Yet, even under this standard, "blanket requests for information on a particular subject without specifying certain documents need not be honored." 14-ORD-181 (quoting 95-ORD-2). Rather, the person making a request must "describe the records he seeks so as to make locating them reasonably possible."
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 855 (Ky. 2013).
On October 17, 2019, the city attorney claimed that the City could not determine what records Mr. Spiaggi wanted. The following day, however, Mr. Olt represented in writing that the City would provide the requested records to Mr. Spiaggi by mail . A request for records by mail is subject to a higher standard, according to which the requester must "precisely describe" the records. KRS 61.872(3)(b). By promising to mail the requested records to Mr. Spiaggi, the City implicitly admitted that he had met this standard of precise description, and thus waived any argument that the request was insufficiently specific. Cf . 19-ORD-182 (request that qualifies for copies by mail under KRS 61.872(3)(b) is necessarily specific enough for inspection on the premises).
Accordingly, we find that the City violated the Open Records Act by responding to Mr. Spiaggi's request in an untimely and insufficient manner, and also by depriving him of his right to inspect public records on agency premises. Additionally, the City subverted the intent of the Act by its excessive delay in producing public 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 proceedings.
Footnotes
Footnotes
1 On appeal, Mr. Spiaggi stated that his request was "verbally limited to two years."