Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Georgetown Municipal Water & Sewer Service's actions relative to Mr. Michael Colvin's July 14, 1992, request to inspect certain records in its custody. Those records are identified as:
1. Any documents, letters, contracts, orders, ordinances, etc. for the past two years pertaining to any funding received by the Georgetown Municipal Water & Sewer Services for the purpose of supplying water.
2. Any documents, letters, contracts, orders, ordinances, regulations, etc. for the past two years pertaining to the water pressure in water lines maintained by the Georgetown Municipal Water & Sewer Service.
3. Any documents, letters, contracts, orders, or ordinances, etc. pertaining to the maintenance of fire hydrants, as well as what agency or agencies are responsible for such service.
4. Any documents, letters, contracts, orders, regulations, ordinances, etc. pertaining to any obligations of the Georgetown Municipal Water & Sewer Service for providing water.
5. Any charter, franchise, ordinance, or other documentation pertaining to the establishment, structure, and existence of the Georgetown Municipal Water & Sewer Service.
Mr. Colvin indicates that his request, which was initially submitted to Mayor Tom Prather, was referred to Ms. Joyce Gee, Records Custodian for Georgetown Municipal Water & Sewer Service, hereinafter GMWSS, for a response.
In a letter dated July 21, 1992, Ms. Gee responded to Mr. Colvin's request advising him that he must first complete a "Request to Inspect Public Records" form used by GMWSS. Mr. Colvin completed the form and returned it to Ms. Gee on July 23, 1992, attaching both his original request and a follow up letter in which he stated:
As I do not know the names of your documents well enough to refer to specific ones that you could simply copy for me, I am requesting to view the relevant records, and then at that time pay for any copies that I make.
Mr. Colvin was subsequently contacted, and arrangements were made for him to inspect the records on August 10, 1992. Upon arriving at GWMSS's office on August 10, he was informed that four of his five requests could not be granted unless he contacted GMWSS's attorney, "and explained to him . . . [his] request, and moreover, that . . . [he] further clarify what [he was] looking for."
In a letter to this office dated August 14, 1992, Ms. Gee presents a slightly different version of the facts surrounding Mr. Colvin's request. She states that in a conversation with Mr. Colvin on August 10, she advised him that "to 'just review information' would take months and that if he could be more specific, the documentation would not be as great." Continuing, she notes that their conversation turned to issues relating to pressure problems, prompting her to ask Mr. Colvin if his lack of specificity was occasioned by pending litigation. At this point, Ms. Gee apparently told Mr. Colvin that he would need to discuss the issue with GMWSS's attorney.
Ms. Gee indicates that all of the minutes of GMWSS meetings for the past three and one half years, the current outstanding bond issues, and city ordinances were made available for Mr. Colvin's inspection. She further indicates that she explained to him that these materials represented only a small portion of the records in GMWSS's custody. Mr. Colvin requested, and was provided with copies of, three ordinances relating to the water and sewer service.
Ms. Gee acknowledges that GMWSS's records are public records and must be made available for inspection, but takes the position that "a specific request must be filed, and not a general one asking for all information." Continuing, she states:
I will be more than glad to provide Mr. Colvin with the thousand [sic] of pages of documentation for him to review. However, because of the magnitude of information, it would be necessary for someone from our office to work with him to make sure all documents are properly refiled. It would be only fair for Mr. Colvin to pay for the time necessary for such an undertaking.
Mr. Colvin identifies two issues in this open records appeal:
1. Whether he is entitled to inspect the requested records without specifically referring to those documents, when he has indicated his willingness to conduct his own search and to accommodate GMWSS's schedule; and
2. Whether GMWSS can make Mr. Colvin's request contingent on his speaking to its attorney and explaining his request.
We concur with Mr. Colvin in his view that these issues are at the center of his appeal, but believe that there are a number of peripheral issues which we must also resolve. For the reasons set forth below, we conclude that GWMSS's actions relative to his request were procedurally deficient, and, at least in part, substantively improper.
KRS 61.880(1) contains specific guidelines for an agency's response to a request under the Open Records Act. That statute provides, in part:
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. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
GMWSS's actions were procedurally deficient to the extent that it failed to respond to Mr. Colvin's request within three business days. Some five working days elapsed between the date of the request and the date of Ms. Gee's response. Owing to her request that he resubmit his request on GMWSS's preprinted form, several more days elapsed before Mr. Colvin was afforded access to the requested documents. Moreover, although arrangements were made for Mr. Colvin to review the documents, upon his arrival at GMWSS's offices in Georgetown, he was advised that he would have to speak with the Water Service's attorney. In our view, these occurrences resulted in an inordinate delay. We urge the Georgetown Municipal Water and Sewer Service to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we find that although GMWSS correctly noted that blanket requests for information on a particular subject need not be honored, requests one and three identify with "reasonable particularity" those documents which Mr. Colvin wished to review, and therefore should have been honored. We believe that the category of documents encompassed by these requests is sufficiently discrete to enable the custodian to identify and access the records described.
In OAG 89-81, a copy of which is attached, we dealt with a situation very similar to the situation presented in this appeal. A request was submitted to the city clerk for several broad categories of records, and that request was denied. At p. 4 of that opinion, we observed:
Although Mr. Smith's requests generally cover a broad range of records . . . [it] describes, with reasonable particularity, categories of documents he wants to inspect.
Some records Mr. Smith has asked to inspect . . . might be exempt from inspection. . . . 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. . . .
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 . . . may require days, or perhaps weeks. Nonetheless the process must be begun.
We believe that OAG 89-81 is dispositive of the central issue in this appeal, i.e., whether Mr. Colvin's request was couched in sufficiently specific terms.
We concur with Ms. Gee in the view that requests two and four are so nonspecific that they preclude her from determining what records they encompass. We can conceive of no specific category of documents which would satisfy these requests. To adopt the language of OAG 89-81, these requests do not appear to be directed to particular types of records. Mr. Colvin may wish to resubmit these requests, and attempt to narrow their focus by identifying specific areas of concern.
We do not believe that Mr. Colvin can be required to discuss his request with the Water Service's attorney as a precondition to inspection. Simply stated, the Open Records Act does not mandate such discussions. Mr. Colvin is not required to explain his request, or to disclose his purpose in inspecting the documents. The purpose for which a person seeks inspection is not a relevant consideration under the Open Records Act. OAG 79-275; OAG 82-234; OAG 83-394; OAG 89-86; OAG 91-116; OAG 91-132.
Nor do we believe that GMWSS may assess Mr. Colvin the cost for time expended by one of its employees in assisting him in his search. The Open Records Act authorizes a public agency to assess a reasonable fee for making copies of public records, but expressly excludes the cost of staff required. KRS 61.874(2). No provision of the Act authorizes the assessment of a fee for assistance in locating or refiling documents. However, KRS 61.872, 61.874, and 61.876, when taken together, suggest that the applicant has an affirmative duty not to disrupt the agency's essential functions by mishandling or removing documents. This Office has recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, at p. 3.
We urge both Mr. Colvin and GMWSS to continue to work in a spirit of cooperation toward identifying and locating the records he wishes to inspect. To that end, we caution Mr. Colvin that he must describe, with reasonable particularity, the records he seeks.
Mr. Colvin and GMWSS may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882.