Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Monterey violated the Open Records Act in responding to Gerald T. Kemper's February 26, 1998, request for copies of written complaints relating to the Roland property which Mayor Rebecca Albaugh referred to in her February 23, 1998, letter to Mr. Kemper. For the reasons which follow, we find that although its response was procedurally deficient, the city properly denied Mr. Kemper's request.
In a letter dated March 3, 1997, Gray Zeitz, Clerk of the City of Monterey, denied Mr. Kemper's request, advising him that the complaints were "exempt from the Open Records Act because no action has been taken (refer to KRS 61.878)." Mr. Zeitz explained that although Mr. Kemper and his clients, the Rolands, have been furnished with a copy of the city's nuisance ordinance, only the city can enforce the ordinance, and to date "no action by the city council has been taken."
We begin by noting certain procedural irregularities in the city's response. KRS 61.880(1) contains specific guidelines for agency response to an open records request. That statute provides:
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 record 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.
Although the City of Monterey issued a timely response to Mr. Kemper's request, the city failed to cite the specific exception authorizing nondisclosure of the complaints. As the Kentucky Court of Appeals recently noted, "The language of the statute directing agency action is exact."
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). It requires the custodian of records to cite the specific exception and "to provide particular and detailed information in response to a request for documents." Id. The city should bear these observations in mind in responding to future open records requests.
Although Mr. Zeitz did not specifically cite the exceptions, he appears to have relied on KRS 61.878 (1)(i) and (j) in denying Mr. Kemper's requests. These exceptions permit public agencies to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In an early open records decision, the Court of Appeals addressed the issue of public access to complaints submitted to a public agency. The court held that complaints are not "exempt from inspection once final action is taken."
City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658, 659 (1982). Continuing, the court observed:
Inasmuch as whatever final actions are taken necessarily stem from [the complaints], they must be deemed incorporated as a part of those final determinations. . . . The public upon request has a right to know what complaints have been made and the final action taken.
Id. at 660. See also
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983); OAG 84-315; OAG 85-36; OAG 86-46; OAG 87-64; OAG 88-43; OAG 89-74; OAG 90-58; 93-ORD-108; OAG 91-33; 94-ORD-20; 96-ORD-164; 96-ORD-177. The Open Records Act does not recognize an exception to the general rule of nondisclosure until final action is taken when the requester is the person against whom the complaint is made or, as in the appeal before us, that person's attorney. Accordingly, we find that the City of Monterey properly denied Mr. Kemper's request. Mr. Kemper may wish to resubmit his request after the city council reaches a decision relative to enforcement of its nuisance ordinance, including a decision not to enforce the ordinance and not to require the Roland's to erect a fence around their property.
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.