Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the City of McKee relative to the open records requests of Kenneth Isaacs violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, the actions of the City did not constitute a violation of the Act.
In his letter of appeal, dated August 20, 2002, Mr. Isaacs stated that he had submitted open records requests to the City on July 18, 2002 and August 12, 2002 and as of the date of his letter of appeal, he had yet to receive a response from the City.
In the letters, Mr. Isaacs requested copies of the following documents:
1. Copies of the minutes of all the meetings of the McKee City Council from January 1, 2000 through December 31, 2000;
2. Copies of all ordinances enacted by the McKee City Council from January 1, 2000 through December 31, 2000;
3. A list of the debts of the City of McKee to include all debts with debtor, amount of each debt, date each debt incurred, and for what items and/or services;
4. The name of each employee of the City of McKee and the amount of pay he/she receives per hour or salary; and
5. A list of all automobiles owned by the City of McKee to include Fire Department vehicles, Police vehicles, etc.
By letter dated August 28, 2002, Bridgette McKinney, City Clerk, on behalf of the City, responded to Mr. Isaacs's request, advising him in relevant part:
1. Copies of minutes of the Council meetings for the year 2000, as well as copies of Ordinances enacted by the City Council in the calendar year 2000, will be made available to you at my office upon payment of the appropriate copying fee.
2. The name of each employee of the City and that employee's salary or budgeted salary (KY OAG 93-ORD-99), will be made available to you at my office upon payment of the appropriate copying fee.
3. While there is no list of all automobiles owned by the City of McKee, a file with some of the Certificates of Title for such vehicles will be made available to you at my office upon payment of the appropriate copying fees.
4. There is no existing list of the debts of the City of McKee. Pursuant to Kentucky [Attorney] General Opinion 86-51, interpreting the Kentucky Open Records Act, it is not necessary for an agency to make a list of items from its records if such a list does not already exist. Certainly if you tell me what type of records or documents you want to look at to compile the information you seek, these will be available to you. However, you must specify the particular records and documents you desire to review.
We are asked to determine whether the actions of the City to the requests of Mr. Isaacs violated the Open Records Act. For the reasons that follow, we conclude, with the exception of a procedural violation, the response of the City did not constitute a substantive violation of the Act.
KRS 61.880 sets forth the procedural guidelines for an agency response to an open records request. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three business days of the receipt of the request, and indicate whether the request will be granted.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond within 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).
This office has also previously held that the press of business or the absence of the official custodian does not justify an untimely delay in providing public records. 96-ORD-238. A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records. 96-ORD-54.
Mr. Isaacs's requests, dated July 18, 2002 and August 12, 2002, were not responded to by the City until August 28, 2002. Accordingly, under these facts, we conclude the failure to respond to each request in writing within three business days after receipt constituted a procedural violation of KRS 61.880(1).
Next, we address Mr. Isaacs's request for copies of the requested minutes, ordinances, and City employees' salary information. KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." The agency may require advance payment of the prescribed copying charge, including postage. KRS 61.874(1). 98-ORD-95.
The City has agreed to make copies of the requested minutes, ordinances, and City employees' salary or pay records available to Mr. Isaacs upon prepayment of the appropriate copying fees. Accordingly, we conclude this portion of the City's response was proper and did not constitute a violation of the Open Records Act.
We address next Mr. Isaacs's request for a list of the debts owed by the City and a list of all automobiles and vehicles owned by the City. In its response, the City advised that it had neither requested list, but agreed to make its records available for Mr. Isaacs's inspection so that he might compile the information he was seeking or if he would specify the particular records he wished to see, they would be made available for his inspection.
In 96-ORD-251, this office stated:
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 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
Simply stated, "[W]hat the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." OAG 91-12, p. 5.
Thus, the Open Records Act does not require the City to compile a list of the information Mr. Isaac requests nor to conduct research or search its records for the information he seeks. The City has complied with the Act by making its records available to Mr. Isaacs for his inspection so that he can search for the information he seeks. Thus, we conclude the City response was also proper and in accordance with the Act and prior decisions of this office.
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.
Kenneth IsaacsP.O. Box 201McKee, KY 40447
Bridgette McKinneyMcKee City ClerkP.O. Box 455McKee, KY 40447
Jim GilbertMcKee City Attorney212 North 2nd StreetRichmond, KY 40475