Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Nicholas County Water District's response to Robert Barker's open records request for:
Copies of the minutes of board meetings which discussed proposed funding or decided the route of water service beyond the intersection of Crayton and Sugar Creek Roads.
Copies of the Engineers reports or recommendation upon which the Board based its decision as the direction of water service to Needmore and Crooked Creek and not to Johnson Rd. and all of Crooked Creek.
Names and addresses of Members of the Board and representatives of the Consulting Engineering Firm.
After receipt of Mr. Barker's letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Water District and enclosed a copy of Mr. Barker's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Becky Reid, Office Manager of the Water District, provided this office with a response to the issues raised in the appeal. The response was also signed by Jim Simmons, Chairman of the Water District. In her response, Ms. Reid states:
In response to log number 9800485, where Robert Barker has complained about the Nicholas County Water District denying his access to public records, we would like to supply this comment:
The first week of February 1998, Mr. Barker was given an unofficial copy of the January 1998 board minutes. They lacked the signatures of the chairman and the secretary. He also reviewed the maps that we had available to us at that time. To my knowledge, the only minutes he has ever requested were the ones given to him. However, the Nicholas County Water District is more than happy to supply to anyone, copies of board minutes if requested in writing and specific dates of minutes supplied. I have never been asked by Mr. Barker to send him regular monthly minutes. All board meetings are open to the public and maps are made available to customers on request.
Mr. Barker has also received a schedule of when the monthly board meetings take place and has been invited to attend.
Mr. Barker asked for copies of preliminary engineering reports in Feb. 1998. Under KRS 61.878 certain public records which are exempted from inspection except on order of court are:
1(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
The contingency lines which Mr. Barker is referring were not final until 4-17-98. If he requests a copy of the final change order, I will be happy to supply it.
The Water District provided Mr. Barker with a copy of its response sent to this office. Afterward, Mr. Barker presented us with a response to Ms. Reid's letter, in which he states that neither Ms. Reid nor Mr. Simmons offer a record of correspondence which would satisfy the requirements of the Open Records Act.
He further states that if the Water District Board had wanted to invoke portions of the statutes which exempted their records from being inspected, there still remained a burden on the Board to notify him of that fact. Finally, Mr. Barker acknowledges that the Water District has agreed to provide him with access to copies of the Minutes of the Meetings and Plans for the Contingency Lines that he had originally requested. However, he asks, because of prior difficulties with Ms. Reid and the Board, if this information can be provided to him at a neutral location.
We are asked to determine whether the responses of the Water District were consistent with the requirements of the Open Records Act. For the reasons which follow, we conclude that the responses were consistent in part and inconsistent in part with the requirements of the Act.
KRS 61.880(1) sets forth the duties and obligations of a public agency relative to an open records request:
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 Water District's response to the letter of appeal indicates it responded to Mr. Barker's initial request orally, it failed to respond to that request in writing. This failure constituted a violation of the procedural requirements of KRS 61.880(1). As we have so often noted, 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. See, e.g., 93-ORD-125. This appeal underscores the need for a written request and a written agency response. It is upon this written record that the Attorney General relies in adjudicating an open records dispute. We urge the Water District to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
Moreover, if the agency denies all or part of a request, it should include a statement of the specific statutory exceptions upon which it relied for withholding the requested records and a brief explanation of how the exceptions applied to the records withheld. In Edmondson v Alig, Ky. App., 926 S.W.2d 856 (1996), the Court of Appeals, in discussing the response requirements of KRS 61.880(1), stated:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Thus, a public agency has the burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document withheld. The oral response denying access to records related to the engineering reports on the basis they were still preliminary, likewise, was a violation of KRS 61.880(1). The absence of a written response leaves this office without a basis to evaluate the adequacy of the explanation to the requester as to whether the cited exception applied to the records withheld.
Turning to the substantive issues of the appeal, there is some dispute between the parties in this appeal as to whether Mr. Barker was provided copies of the minutes of the meetings he requested. As noted above, resolution of this issue is made difficult due to the agency's failure to respond to the initial request in writing. However, in its subsequent response, the Water District indicated that it will make available for Mr. Barker's inspection copies of board minutes, if specific dates are provided, and that the Plans for the Contingency Lines is now final and will be provided should he request a copy of it. Accordingly, since the Water District has agreed to provide the requested documents, this portion of the appeal is moot. 40 KAR 1:030, Section 6.
Finally, Mr. Barker requests, because of prior discordant experiences with the Water District Board and its office manager, that the requested records be supplied to him at a neutral location, such as the County Attorney's Office or the Public Library. KRS 61.872(1) requires that all public records shall be open for inspection by any person and suitable facilities shall be made available by each agency for the exercise of that right. KRS 61.872(3) provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
Thus, 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. Mr. Barker may inspect the records at the public agency during normal business hours or may request that they be mailed to him after payment of copying fees and the cost of mailing. Although the public agency may agree to provide the records at a neutral location, it is not require to do so under the Open Records Act.
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.