Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Jefferson County Sheriff's response to Larry O'Bryan's December 18, 1997, request for copies of nineteen separate categories of records and information pertaining to the sheriff's office. Mr. O'Bryan operates Pro-Active Media, a media consultant company, and is represented by Thomas E. Ewen. The question presented in this appeal is whether the Jefferson County Sheriff violated, in whole or in part, the Open Records Act in responding to Mr. O'Bryan's request. For the reasons which follow, we find that the sheriff's response violated the Act in part.
In a letter dated December 29, 1997, Sheriff Vaughn advised Mr. O'Bryan that because his request implicated voluminous records and information maintained in different locations, and because the records and information would first have to be reviewed "to determine whether statute permits or requires release," the sheriff's office could not respond to his request in three days. In support, Sheriff Vaughn cited KRS 61.872(5). In addition, the sheriff noted that Mr. O'Bryan's request might come within the exception codified at KRS 61.872(6), although he indicated that he was not, at this point, denying the request. Finally, Sheriff Vaughn stated that "some or all of the records" might qualify for exclusion under KRS 61.878(1)(a), (g), (h), (i), (j), (k), or (l). He indicated that his office would complete its review "no later than January 30, 1997." On January 8, 1998, Mr. Ewen submitted this appeal on behalf of his client.
On January 26, 1998, Sheriff Vaughn issued his final response to Mr. O'Bryan's request. Relying on KRS 61.874(4)(b), he indicated that Mr. O'Bryan would be required to complete a certified statement of commercial purpose before reviewing nonexempt public records. Mr. O'Bryan's requests and the sheriff's responses are summarized below along with our analysis of the propriety of those responses. A few observations and comments precede this analysis.
We begin by noting certain procedural irregularities in the sheriff's handling of Mr. O'Bryan's request. KS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request received under the Open Records Act. "The language of the statute directing agency action is exact." Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996).KRS 61.880(1) requires that upon receipt of a records request, each public agency "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." At page 4 of 95-ORD-105, we examined this duty, observing:
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or are otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "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. " KRS 61.872(5).
Although KRS 61.872(5) permits a public agency to postpone access to records which are "in active use, in storage or not otherwise available," it does not permit the agency to enlarge its statutory response time. Mr. O'Bryan mailed his open records request on December 18, 1997. The sheriff acknowledged this request on December 29, 1997, but failed to notify him whether he intended to comply until January 26, 1998. Accordingly, some twenty-one business days elapsed between the date that Mr. O'Bryan's request was mailed and the date that the sheriff issued his KRS 61.880(1) response. This delay was clearly contrary to KRS 61.880(1). The procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. The Jefferson County Sheriff should be guided by these observations in responding to future open records requests.
As a separate matter, we note that in responding to Mr. O'Bryan's request the sheriff relied on KRS 61.874(4)(b), advising him that he must complete a certified statement of commercial purpose and return it to the sheriff prior to reviewing non-exempt public records. This provision, along with the other 1994 amendments to the Open Records Law distinguishing between commercial and noncommercial use of public records, has been declared unconstitutional by the federal district court for the Western District of Kentucky. Stephen Amelkin, D.C. v. Commissioner, Department of State Police , Civil Action No. 3:94 CV-360-A (W.D. Ky., June 4, 1996) appeal docketed , No. 96-5942 (6<th> Cir. July 2, 1996).
In Amelkin , the district court analyzed the constitutionality of Senate Bill 351, which amended KRS 189.635 to prohibit disclosure of accident reports filed with the Department of State Police except under narrowly defined circumstances, and to certain identified individuals, specifically, insurers and media representatives. The bill was apparently aimed at discouraging direct solicitation of business for pecuniary gain, and had an immediate impact on attorneys and chiropractors who filed suits challenging the amendment. The court concluded that the statute, as amended, is unconstitutional, and in its judgment permanently enjoined defendants, including this office, from enforcing " the 1994 amendments to KRS 189.635 and KRS 61.874, et seq. , and . . . KRS 438.065." (Emphasis added.)
To the extent that the Jefferson County Sheriff's records policy incorporates one of the 1994 amendments to the Open Records Act which have been declared constitutionally infirm, we cannot approve it. In light of the court's opinion in Amelkin , we find that Mr. O'Bryan cannot be required to submit a certified statement of commercial purpose before he can inspect nonexempt public records.
Finally, we note that although Mr. O'Bryan requested copies of the records identified in his December 18 letter, Sheriff Vaughn only agreed to permit inspection "at 1:00 p.m. on Friday, January 30, 1998," and to furnish him with copies at a cost of fifty cents per page. This response is problematic. KRS 61.872(3) provides:
(3) 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 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 who lives or works in a county other than the county where the public records are located may demand that the public agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. 95-ORD-52; 96-ORD-186.
Mr. O'Bryan apparently lives and works in Jefferson County. The sheriff is therefore well within his rights in requiring Mr. O'Bryan to inspect the records before he receives copies. The fact that the sheriff has elected to make the records available to him by means of on-site inspection is, however, critical for the following reason:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. 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.
97-ORD-46, p. 3. A description is adequate for purposes of on-site inspection if it identifies records "with sufficient clarity to enable the public agency to locate and make them available." 97-ORD-46, p. 4. A description is sufficiently precise for purposes of records access by mail if it describes the records "in definite, specific, and unequivocal terms." 97-ORD-46, p. 4. In addition to the requirements of out of county residence and precise description, a requester may access records by mail only if those records are readily available within the public agency:
This third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant.
97-ORD-46, p. 5. Since Sheriff Vaughn has indicated that he will permit Mr. O'Bryan access to his office's records by means of on-site inspection, we must apply a relaxed standard for determining the adequacy of Mr. O'Bryan's description. This has a direct bearing on the propriety of the sheriff's denials of Mr. O'Bryan's requests which are based on their lack of specificity, and the nonexistence of a record containing the information sought.
Additionally, we note that the sheriff relied on KRS 61.874(4) in establishing a copying charge of fifty cents per page based on intended commercial use. As a result of the district court's opinion in Amelkin , we cannot approve this policy. Unless the Jefferson County Sheriff can substantiate that his actual cost for reproducing the records, not including staff time, is fifty cents per page, he must adjust the charge to reflect the cost of media and mechanical processing only. KRS 61.874(3). The Kentucky Court of Appeals has determined that ten cents per page is a reasonable fee for reproducing standard hard copy records. Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985). With these observations in mind, we turn now to the specific records requested, the sheriff's responses, and this office's analysis of those responses.
Requests denied because no record exists which is responsive
In denying the majority of Mr. O'Bryan's requests, Sheriff Vaughn relied on OAG 89-81, asserting that no single record exists which is responsive to each of those requests. On this basis, he denied Mr. O'Bryan access to:
. A list of current employees who have been paid or credited compensation for overtime work performed
. The make, model, year and cost of all automobiles, vans, or trucks purchased or leased between 1/1/94 and the present including maintenance costs, the person or company performing the work, and insurance companies and their agents which insure these vehicles
. A list of all bonds and bonding companies used by the sheriff's office
. A list of all personal service contracts and the bidding procedures used for each
. A list of all reserve or special deputies for the sheriff's office from 1/1/94 to the present
. A list of all guns destroyed by the sheriff's office from 1/1/94 to the present
. A list of all members and functions of all advisory committees, and a list of the members of these committees who have contracts or do business with the sheriff's office
. Dates, locations, purpose, cost, and name of any sponsoring conference attended by Sheriff Vaughn or his employees from 1/1/94 to the present
. Names and addresses of all financial institutions in which deposits have been made by the sheriff's office from 1/1/94 to the present, including date account was opened, present interest rates, fees paid on accounts, dates on which non-interest bearing accounts were first credited with interest, and a list of all certificates of deposit or repurchase agreements
. Redecorating costs incurred by the sheriff's office from 1/1/94 to the present
. Names of companies which submitted bids for redecorating or items of furniture, and the proposed bids
. Names of companies which performed renovations or redecorating and their proposed bids
. Purchase date and cost of animals purchased by sheriff's office from 1/1/94 to the present including animal's species, name, cost incurred to maintain the animal, and the animal's duties
. Complete accounting of money confiscated by the sheriff's office or shared by the sheriff's office with other law enforcement agencies as a result of confiscation procedures
. Amounts paid to vendors who have sold goods or services to the sheriff's office between 1/1/94 and the present
. Names of attorneys, accountants, and CPAs who have been hired, held on retainer, or paid for services for the sheriff's office between 1/1/94 and the present, amounts paid, and services provided.
In general, these records can be characterized as financial and operational records of the sheriff's office. The Attorney General has consistently recognized that such records must be made available for public inspection. See, e.g., OAG 76-648, p. 2 (holding that "wherever public funds go, public interest follows"); OAG 82-169, p. 3 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 90-30, p. 3 (holding that "amounts paid from public coffers are perhaps uniquely of public concern"); OAG 91-7, p. 3 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ). Among the numerous items of information requested by Mr. O'Bryan, we are hard-pressed to identify any which would not be subject to disclosure if contained in one or more existing records.
It is the opinion of this office that OAG 89-81, cited by Sheriff Vaughn in support of his denial of Mr. O'Bryan's request, does not authorize nondisclosure but instead compels disclosure of records containing the information he seeks. In OAG 89-81, the requester sought a broad range of records relating to fiscal assets, receipts, and expenditures of the city. This office found that the city failed to act consistently with the Open Records Act in denying the request, and concluded that although city employees were not required to compile or explain records, they were required to make records reflecting this information available for inspection "where there is a reasonable description of [the] records sought." OAG 89-81, p. 1. Elaborating on this position, we observed:
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.
OAG 89-81, p. 5. We acknowledged that the request covered a broad range of records, but found that it described, with reasonable particularity, categories of records the requester wished to inspect, and that those records are "of generally recognized public recordation subject to public scrutiny. . . ." OAG 89-81, p. 4. For this reason, we held that the city must make a good faith effort to make available to the requester records containing the information he sought, though inspection might "require days, or perhaps weeks." OAG 89-81, p. 4. "Unreasonable restrictions on inspection, " we concluded, "may not be imposed." OAG 89-81, p. 4, citing OAG 80-641.
In a subsequent opinion, even more directly on point, this office was asked to review a county clerk's denial of a request for information consisting of the salaries of deputy clerks and their individual travel expense amounts for a ten year period. Holding that the clerk's denial was inconsistent with the Open Records Act, we observed:
In the instant case, a request was made for certain "information". Kentucky's Open Records provisions are not intended to provide a requester with particular "information," nor to require public agencies to compile information to conform to the parameters of a given request. See, for example, OAG 76-375, copy attached. Kentucky's Open Records provisions do provide for inspection of reasonably identified records, unless exceptions are taken pursuant to specific statutory provisions. The request here, technically, appears to be a request for specific information to be provided, rather than a request to inspect reasonably described records. Taken literally, the request asks that salary and travel expense information be compiled for each of the calendar years 1978 through 1988.
While the request here involved is one for information, rather than to inspect records, and thus does not technically conform to Open Records provisions, we believe the proper response was for you to promptly respond in writing to the request. Your response should have stated that while Open Records provisions did not require a public agency to compile information, records that might yield the information sought would be made available for inspection during normal office hours. Parts of records withheld, such as the home address of an employee, or a social security number, should have been explained in a manner consistent with KRS 61.880. See for example, OAG 86-75.
OAG 90-19, p. 3.
Finally, in 97-ORD-6, the Attorney General held, "While it is certainly true that public agencies are not required to compile information to satisfy [a request for information], we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (emphasis in original). In support of our position, we cited an early open records opinion in which this office noted that if a requester cannot identify the records he wishes to inspect with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " OAG 76-375, p. 3. Echoing this view, at page 5 of OAG 89-61, we held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled. "
As we observed in the opening paragraphs of this appeal, the sheriff's decision to require Mr. O'Bryan to conduct an on-site inspection of the records identified in his request, rather than mail him copies of those records, means that Mr. O'Bryan need only describe them "with sufficient clarity to enable the public agency to locate and make them available." 97-ORD-46, p. 4. The records need not be described "in definite, specific, and unequivocal terms," id., nor must they be "readily available within the public agency. " KRS 61.872(3)(b). In the absence of a properly asserted exemption authorizing nondisclosure of records containing the information Mr. O'Bryan seeks, Sheriff Vaughn must direct him to the relevant files so that he might extract the information himself. Bearing in mind "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," KRS 61.871, we believe that this resolution of the dispute strikes a reasonable balance between the right of public access and the agency's need "to prevent excessive disruption of its essential functions." KRS 61.876(1).
Requests partially denied on the basis of KRS 61.878(1)(i) and (j)
As noted, Sheriff Vaughn agreed to make available for inspection audits performed on his office from December 1993 to December 1997, as well as his office's budgets from January 1994 to the present. In so doing, however, he denied Mr. O'Bryan's request for "draft copies" of the budget and supporting documentation used in the preparation of both. The sheriff maintained that these requests implicated records which were properly excludable under KRS 61.878(1)(i) and (j) as preliminary drafts, notes, correspondence, recommendations and preliminary memoranda in which opinions are expressed. We affirm the sheriff's denial of these portion of Mr. O'Bryan's request.
In an early open records opinion, this office held that work papers and supporting documentation generated by an auditor in the course of preparing an audit report were exempt form public inspection under KRS 61.878(1)(i) and (j), formerly codified as KRS 61.878(1)(g) and (h). At page 2 of OAG 78-816, we observed:
Work papers . . . are not public records . . ., since only the "completed report" can be a public document or record. Moreover, even when the complete report is made, such work papers would be exempted from the right of public inspection under KRS 61.878(1)(g) and (h), relating to preliminary drafts, notes, recommendations, memoranda, etc. Such preliminary drafts, notes, etc., are simply part of the tools which a public officer or employee uses in carrying out his statutory functions. [Citation omitted.] The public has a right to inspect a complete public action, namely, the completed report. The work papers are merely the informal and trial and error approach to the problem in the inchoate period leading up to the formulation of the completed report.
OAG 78-816, p. 2, modifying OAG 76-204; see also, OAG 79-470; OAG 91-70; OAG 92-90; 94-ORD-107; 95-ORD-100; 95-ORD-156; 97-ORD-188. A long line of precedents clearly supports the sheriff's denial of Mr. O'Bryan's request for supporting documentation and work papers, as well as his request for draft budgets. OAG 83-166, p. 2 (holding that "preliminary drafts of a budget are not required to be available for public inspection [since] they are of the nature of intraoffice memoranda, preliminary, tentative and merely expressions of recommendations which may or may not be incorporated into the final documents"); 92-ORD-1346; 96-ORD-141. Sheriff Vaughn's denial of these portions of Mr. O'Bryan's request were entirely consistent with the Open Records Act.
The sheriff also denied that portion of Mr. O'Bryan's request pertaining to "all audits performed by the Kentucky State Auditors Office, the Kentucky State Revenue Cabinet, and all other taxing jurisdictions for which the sheriff collects taxes," arguing:
To the extent [that this request] is not identical to the request for audits of the sheriff's office [which Sheriff Vaughn agreed to honor], [it] is denied because the sheriff's office does not have custody or control of audits performed for the Kentucky State Revenue Cabinet or other taxing jurisdictions for which the sheriff collects taxes, if any such audits exist. KRS 61.872(4). The agency authorities are custodians of any such audits.
We affirm the sheriff's denial of this portion of Mr. O'Bryan's open records request, and find that he fully discharged his duties under the cited provision.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Although it is important to note that if a public agency has concurrent custody and control of a public record it cannot withhold that record simply because it might more appropriately or more easily be obtained from another agency, the sheriff's response was proper if his office does not maintain a copy of Revenue Cabinet audits and audits performed by and for taxing jurisdictions for which the sheriff collects taxes. OAG 90-71; 94-ORD-155; 96-ORD-7. Pursuant to KRS 61.872(4), Sheriff Vaughn referred Mr. O'Bryan to the apparent custodians of any such records. The Open Records Act does not require more.
Requests denied on the basis of KRS 61.878(1)(i), (j), (k), or (l) and the attorney-client privilege/attorney work product doctrine
The final category of documents to which the sheriff denied Mr. O'Bryan access consisted of "the names of any attorney, accountant, CPA, who has been hired, held on retainer, or paid for a service performed for the Jefferson County Sheriff's office between 1/1/94 and the present," along with amounts paid for services rendered and the nature of the services provided. In support of his denial, Sheriff Vaughn invoked "KRS 61.878(1)(i), (j), (k) or (l)," and the attorney-client privilege/work product doctrine. Sheriff Vaughn's denial of this portion of Mr. O'Bryan's request is not supported by precedent. We therefore find that he improperly denied the request.
Although the attorney client privilege, codified at KRE 503, is deemed incorporated into the Act by operation of KRS 61.878(1)(l), the privilege does not extend to contracts and billing records of attorneys working for a public agency. OAG 82-169; OAG 85-91; OAG 92-14; OAG 92-92; 95-ORD-18. Thus, at page 6 of OAG 92-14, we observed:
There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of insuring agency accountability. We recognized this principle in OAG 82-169 and OAG 85-91, where we expressly held that the records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys, should be made available for public inspection at the conclusion of pending litigation. We believe that that opinion, coupled with the authorities cited above, mandate release of the monthly statements prepared by the city's attorneys which reflect the general nature of the legal services rendered. Should those invoices disclose substantive matters protected by the attorney client privilege, and exempt under KRS 61.878(1)[(l)] the exempt material should be separated from the non-exempt materials, and the non-exempt materials released for public inspection.
We believe that the logic of this decision, and the authorities cited therein, can be extended to contracts, vouchers, and other business records generated for the sheriff by accountants and CPA working for his office. Sheriff Vaughn's denial of this portion of Mr. O'Bryan's request was therefore improper.
Conclusion
Subject to the opinions expressed and the guidelines set forth above, we direct the sheriff to make available for Mr. O'Bryan's inspection records containing the information he requested in his December 18 request with the exception of draft copies of the sheriff's annual budgets, audits in the custody of other agencies, and supporting documentation generated in the course of preparing audits and annual budgets. It is our opinion that the remaining requests, although improperly framed, seek records and information of a public nature to which Mr. O'Bryan must be afforded access by means of on-site inspection rather than by means of receipt of copies through the mail. If, upon inspection, Mr. O'Bryan wishes to obtain copies of any or all of the records implicated by his request, the sheriff must reproduce those records upon prepayment of a reasonable fee reflecting his actual cost. Consistent with the federal district court's decision in Amelkin , Mr. O'Bryan cannot be required to submit a certified statement of commercial purpose.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.