Request By:
Ms. Harriet Black
City Clerk
City of Russell Springs
P.O. Box 247
Russell Springs, Kentucky 42642
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of October 5, 1989, received in this office on October 10, 1989, David F. Smith, Esq. has, in substance, appealed your response to his request dated September 21, 1989, to inspect certain records of the City of Russell Springs.
FINDINGS IN BRIEF
The City of Russell Springs failed to act consistent with Open Records provisions by failing to timely respond to a request to inspect its records, and by failing to make a specific response, in accordance with KRS 61.880, to a request to inspect its records. Referring a requestor to a response to a prior request does not meet the response requirements of KRS 61.880. While city workers do not have to compile or explain records, they must make a good faith effort to make available for inspection, records related to fiscal assets, receipts, and expenditures, of the city, where there is a reasonable description of records sought. If inspection of any records is denied, the denial must be made in keeping with KRS 61.880.
FACTUAL BACKGROUND
By letter of September 21, 1989, Mr. David F. Smith, Esq., asked to examine "whatever records exist at city hall for the following items:"
1. Evidence of Certificates of Deposit, Money Market Certificates, Stocks, Bonds, Savings Accounts (in whatever form) and any other evidence of "financial" assets of the city.
2. W-2's or other evidence of salaries or wages or commissions paid by the city to employees or independent contractors for the years 1985 through 1989, inclusive.
3. All bank statements, cancelled checks, checkbooks, and deposit tickets for any bank accounts owned or controlled by the city for the period 1985 through 1989, inclusive.
4. Records in your possession regarding any public works project done within the city limits of Russell Springs for the period 1985 through 1989.
5. All bills received and paid regarding the current sidewalk renovation project now going on in downtown Russell Springs.
6. All statements received, whether paid, regarding the recent electrical modification to the city water works' plant.
7. Any documents necessary to itemize and determine precisely the total of all city revenues, from whatever source, for the years 1985 through 1988, inclusive, and the current year to date.
Mr. Smith indicated the requests were made on behalf of his client, Mr. Dravo Flanagan.
A hand notation on the copy of Mr. Smith's September 21 letter indicates it was delivered to you on September 25, 1989, at 10:45 A.M.
You responded to Mr. Smith by letter dated October 4, 1989, stating:
In reply to your letter dated September 21, 1989, please refer to my answer of September 21, 1989. You have already examined the records which we have made available to you and made copies of same.
I hope this answers your second request.
Mr. Smith's appeal, dated October 5, 1989, received by this office on October 10, 1989, followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
It appears from the documentation submitted to this office, that, with respect to Mr. Smith's request dated September 21, 1989, apparently tendered to your office on September 25, 1989, you did not respond in writing except by a response dated October 4, 1989. KRS 61.880(1), noted above, requires that within three days after receipt of a request to inspect records, a written response be made to the requestor. Your response was dated on the seventh working day following apparent receipt of the request. Your response, therefore, was not consistent with KRS 61.880.
Further, in your response, you directed the requestor to see a previous response regarding an earlier request. This action, also, is not consistent with KRS 61.880(1), the requirements of which are indicated above. Public agencies, pursuant to KRS 61.880, must respond separately and specifically to each request to inspect public records.
For the reasons indicated, we find the City of Russell Springs failed to act consistent with the provisions of KRS 61.870 to 61.874.
Although Mr. Smith's requests generally cover a broad range of records, this latest request describes, with reasonable particularity, catagories of documents he wants to inspect. The categories of records he describes are those of generally recognized public recordation subject to public scrutiny in a city clerk's office. See for example, OAG 82-311.
Some records Mr. Smith has asked to inspect (e.g., "W-2's," might be exempt from inspection under KRS 131.190 and 61.878(1)(j). Salary or wage information of public employees is subject to scrutiny, however. See for example, OAG 77-723. Other requests may be so broad (evidence, without time limitation, of assets of the city; any documents necessary to itemize and determine precisely the total of all city revenues . . . .") as to present a relatively burdensome undertaking. While noting the breadth of Mr. Smith's requests, the requests involved here appear directed to particular types of records and are more specific than those in his previous request, addressed in OAG 89-61.
We believe you must make a good faith effort to make available to Mr. Smith for his inspection, records that conform to his requests. Inspection of the records Mr. Smith seeks in his most recent request may require days, or perhaps weeks. Nonetheless the process must be begun. Unreasonable restrictions upon inspection may not be imposed. See OAG 80-641.
You may, of course, in meeting the direction of this opinion, take into account the need to assure that essential functions of the agency are not disrupted.
At the same time, Mr. Smith should realize that records answering the relatively broad sweep of his requests are not necessarily cumulated in neat categories conforming to his requests. Substantial time and effort will be required for city employees to extract records that conform to his requests. In some instances Mr. Smith will have to provide clarification regarding which records he wants to see.
Mr. Smith should also, we believe, be aware that Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. See KRS 76-375. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced.
Mr. Smith indicates in his latest appeal that he has not been permitted to inspect any of the records he sought. Such contention seems overbroad. As we understand it, some records have been made available. Audit reports, for example.
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under Open Records provisions. It seems clear that you have permitted inspection of some records Mr. Smith asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
If the city denies inspection of any records, its denial(s) must conform to the requirements of KRS 61.880.
Both your agency and Mr. Smith may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to David F. Smith, Esq.