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 is before the Attorney General on appeal from the responses of the FIVCO District Health Department to Mary Fitch's August 24, 1999 open records request, addressed to Paul Rice, Lawrence County Health Department, for a copy of "all records of septic tank denials on all properties that you or anyone under you have inspected, in Lawrence County, Ky.; from Jan. 1, 1999 to present."
By letter dated August 30, 1999, Suzanne Smith, Environmental Health Supervisor, on behalf of the Department, responded to Ms. Fitch's request. In her response, Ms. Smith advised:
Under the open records law, we are not required to accept blanket or voluminous requests. In accordance, with the law, you must review the files in my presence. At this point, I will be glad to make copies for you for 10 [cents] per copy.
Should you request an appointment to review the files. I will schedule a meeting with you within 3 - 4 weeks at Lawrence and/or Boyd county offices.
Also be advised that no files can leave our offices.
Please feel free to contact me for an appointment and I will schedule it as soon as possible.
In response to Ms. Smith's letter, Ms. Fitch indicated by return letter that she would be glad to pay 10 [cents] per copy but stated she did not feel that she needed to come to the Department's office to get them.
By letter dated September 3, 1999, Ms. Smith informed Ms. Fitch that she was in receipt of her request for an appointment to review the on-site records from January 1, 1999, to the present. She advised:
Please be advised that open records only applies to completed files in Boyd and Lawrence counties. It does not apply to site evaluations, field notes and inter-office memoranda.
All environmental staff members will be out of town September 8, 9, and 10, 1999. Should you still desire to review the completed files, please contact me on Monday, September 13, 1999, for an appointment to review the files. I will schedule a date as soon as possible.
In her letter of appeal, Ms. Fitch states that she did not request site evaluations or field notes or inter-office memoranda, but that she did request a list of all septic systems that were denied. She argues that once a septic system has been denied, it is a completed file, subject to the Open Records Act.
As authorized by KRS 61.880(2), Ms. Smith responded to the letter of appeal, stating that it was her understanding that only completed files are to be released under the open records law. She explained that the site evaluations in question are situations where permits have not been issued.
We are asked to determine whether the Department's responses were consistent with the requirements of the Open Records Act. For the reasons that follow, we conclude that the responses were consistent in part and inconsistent in part with the Act.
Denial of an open records request must be articulated in terms of the Act KRS 61.880(1) in part sets forth the duties and obligations of a public agency or an agency subject to the provisions of the Open Records Act relative to a request for access to agency records.
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.
In its initial response, the Department stated that it was not required to accept "blanket or voluminous requests." This response was procedurally deficient in that it failed to cite a specific statutory exception which authorizes the withholding of the requested records and a brief explanation as to how the exception apples to the records withheld, as required by KRS 61.880(1).
The Department correctly asserts that blanket requests for information on a particular subject, which have not described the requested records with reasonable particularity, need not be honored. 94-ORD-12. However, in our view, a request for records of septic tank denials on all properties in Lawrence County from January 1, 1999 to present is "couched in sufficiently specific terms to permit the records custodian to determine what records it encompasses and whether those documents are exempt. " 93-ORD-116, p. 2. If access to any such records is denied, the facility must support its denial by reference to the specific exception authorizing nondisclosure. KRS 61.880(1).
The burden of proof establishing that the requested records fall within an exception of the Open Records Act rests with the public agency. The Department does not describe with any degree of specificity the volume of records implicated by the request, the difficulty in assessing the records, or other problems associated with redacting exempt materials from those records. Accordingly, we conclude this portion of the response is also substantively deficient because the agency fails to meet its burden of establishing by clear and convincing evidence that producing the requested records would place an unreasonable burden on it, justifying a denial of the request, pursuant to KRS 61.872(6). 1
However, we find that the Department substantially complied with the Open Records Act by agreeing to make its records available for Ms. Fitch's inspection, to enable her to search for the records she seeks. This office has held that although a public agency is not required to research public records to provide information to meet the parameters of an open records request, it is required to make available for inspection, during regular business hours, records which might yield the information sought. 97-ORD-3; OAG 90-19.
In OAG 76-375, we recognized that if a requester cannot identify the records he desires 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. "
In her letter of appeal, Ms. Fitch argues that the Department improperly refused her request for a list of all denials of septic tanks in the area. This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251. If such a list does not exist, the Department is not required to create a list to meet the parameters of an open records request.
In a subsequent response to Ms. Fitch's initial request, Ms. Smith advised Ms. Fitch that the Open Records Act only applied to completed files and did not apply to site evaluations, field notes, and inter-office memoranda. Ms. Smith further advised that if Ms. Fitch wanted to review the completed files, she should contact her to set up a date for the review. This response is also procedurally deficient in that it neither sets forth an exception upon which the agency is relying for withholding access to a public record nor offers a brief explanation of how that exception applies to the records withheld, as required by KRS 61.880(1).
In her response to the letter of appeal, Ms. Smith cites OAG 87-58 as support for her position that only completed files are subject to inspection and site evaluations, field notes, and interoffice memoranda, which are preliminary, are not subject to inspection.
In OAG 87-58, this Office held that a public health department properly denied a request to inspect documents pertaining to an application to install a sewage disposal system since those records were preliminary in character, and exempt from disclosure under exceptions, now codified as KRS 61.878(1)(i) and (j), 2 because they did not represent the agency's final decision as to whether a permit would issue.
In the instant case, the agency has agreed to make records available for Ms. Fitch's inspection. Since the inspection of the records has yet to take place, we cannot address which records may be available for inspection and which ones may be withheld. If the Department denies, in whole or in part, inspection of any record, it should comply with the requirements of KRS 61.880(1).
Finally, an issue is raised that the requester should not be required to come to the Department's office to inspect the records, before getting copies. KRS 61.872(3)(a) and (b) establish guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
The statute thus 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 records are located may be required to inspect the records prior to receiving copies. 97-ORD-3. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide her copies of records, without inspecting those records, if she precisely describes the records and they are readily available within the agency. 96-ORD-186.
Because she lives in Louisa, Lawrence County, Kentucky, Ms. Fitch can clearly be required to view the requested records at the offices of the Lawrence County Health Department before obtaining copies. If the records Ms. Fitch seeks are located or maintained in the FIVCO District Health Department offices in Ashland, Boyd County, Kentucky, and she neither works nor resides in Boyd County, she may request that copies of the requested records be mailed to her, without inspecting them, upon receipt of all fees and the cost of mailing. This assumes that the records requested have been precisely described to and are readily available within the public agency. KRS 61.872(3)(b).
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.
Footnotes
Footnotes
1 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
2 KRS 61.878(1)(i) and (j), authorize the nondisclosure of:
(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.