Request By:
Albert Moffett
Moffett Realty, Inc.
P.O. Box 247
264 Mill Circle Drive
Shelbyville, KY 40066Joanne Bemiss
Administrator/Enforcement Officer
Triple S Planning and Zoning Commission
501 Main Street
Shelbyville, KY 40065Charles R. Hickman
Shelby County Attorney
Courthouse
501 Main Street
Shelbyville, KY 40065
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Triple S Planning and Zoning Commission relative to the request of Mr. Albert Moffett for specified information concerning "the plat on the development at the Cardinal Club" violated the Kentucky Open Records Act. Based on the following, it is the decision of this office that the Commission's response was procedurally deficient but otherwise consistent with the Open Records Act. Because the Commission has provided Mr. Moffett with copies of any existing records which are responsive to his request, any substantive issues concerning those records are now moot.
By letter dated June 15, 2004, Mr. Moffett framed his request as follows:
I have several questions I would like to ask , and I hope you can find out the answers for me.
I see on Sheet 3 there is a retention basin shown in the design, but no construction basin has been constructed on the site. It looks like there is also a retention basin showing on Sheet 4, but neither of these are in place. I would like to know who the inspector was for the development, particularly on these two sheets for the streets, water and sewer designs, and drainage structures. I would like to know what the original bond was and how it was figured, and I would like to know how much of the bond has been released. Honestly[,] I would like to know why these retention basins were not built as they were supposed to be, either before any structures were put in place or within a reasonable period from the time the bond was put up and the structures were started. . . .
. . . I would appreciate your advising me along these lines as to why it was not required that these be put in before any structures were built and what is being done about getting them put in now. . . .
I would also like to ask how a building permit was issued for Lot 2 of Gardendale Subdivision for a commercial metal and pole building that is being used to store earth-moving equipment and the like. . . . I would appreciate information as to how and why a building permit would be issued for such a structure. (Emphasis added).
Having received no response, Mr. Moffett resubmitted his request on July 6, 2004. Responding on behalf of the Commission, Joanne B. Bemiss, Administrator/Enforcement Officer, advised Mr. Moffett as follows:
Per your letter of complaint on the drainage of Cardinal Club Estates and Cardinal Oaks.
Attached you will find a letter to David Mindel, whose firm designed the above-mentioned development, including the drainage design.
There are several bonds on file in this office for the development. Also, your question on the garage permit issued to Richard Sparks on lot 2 Gardendale Subdivision was for a residential garage. 1
My inspection of this property, on several occasions since your letter, has not indicated a commercial use. I will continue to observe this property for a possible violation.
If a violation is occurring, please be assured, it will be addressed.
Upon receiving this response from the Commission, Mr. Moffett notified Ms. Bemiss that he had still "not received the information [he] requested in [his] letter of June 15, 2004[,] regarding the name of the inspector for the Cardinal Club Development, the amoun[t] of the bond, and the amount of the bond that has already been released" by letter dated July 12, 2004. Accordingly, Mr. Moffett reiterated his earlier request.
Having received no further response, Mr. Moffett initiated the instant appeal in a letter received by this office on July 27, 2004, attached to which are copies of the referenced correspondence. According to Mr. Moffett, he received a letter "which did not provide the information [he] had requested" in response to his request. As "there is a time frame during which materials which are requested under the Freedom of Information Act are to be provided," Mr. Moffett "would like to know what that time period is." 2 Although Mr. Moffett "will be more than happy to pay for this information to be put together," he "can't seem to get this information." Rather, his request "is simply sidestepped" and not answered.
In a facsimile received by this office on July 30, 2004, Ms. Bemiss supplemented her response on behalf of the Commission, advising Mr. Moffett as follows:
I have notified the Cardinal Oaks developer Mr. Roger Bright that the detention basin must be installed before any further permits are issued. A copy of that letter was faxed to you.
In reviewing the five (5) bonds on file for this development, they are for streets, sidewalks and sewers, not drainage. There are no requirements for bonding on drainage. See attachment.
"For information on inspections, " Ms. Bemiss advised Mr. Moffett to "contact the County Road Department for roads and Simpsonville Sewer for sewers [,]" thereby discharging her statutory duty relative to that aspect of the subject request. 3 With respect to Mr. Moffett's complaint regarding the construction of a garage on lot 2, Gardendale, the "issuance of the permit is in compliance with zoning regulations as an accessory structure per [Ms. Bemiss's] interpretation as Zoning Administrator/Enforcement Officer." Included with her response is a copy of the permit issued on March 25, 2002, to Richard Sparks. In closing, Ms. Bemiss reiterates that her "inspection of this property on several occasions since [Mr. Moffett's] initial correspondence has not revealed "a commercial use or any other violation[,]" and assures Mr. Moffett that "any violation will be addressed." Attached to the Commission's supplemental response are copies of records which appear to be responsive to Mr. Moffett's request.
As a public agency, the Commission is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. KRS 61.880(1) dictates the procedure that a public agency must follow in responding to a request submitted under the Open Records Act. In relevant part, KRS 61.880(1) 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. (Emphasis added).
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the Commission's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; See also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
02-ORD-165, pp. 4, 5.
As previously noted, the Commission did not respond to Mr. Moffett's request dated June 15, 2004, until July 8, 2004, and then responded only upon receiving a second letter from Mr. Moffett with a copy of his original request enclosed. Such a delay constitutes a violation of the Open Records Act absent a "detailed explanation" and "the place, time, and earliest date on which the public record will be available for inspection" required by KRS 61.872(5), both of which are noticeably lacking here. To this extent, the Commission's response is procedurally deficient. Although the Commission was not obligated to honor Mr. Moffett's request for information, the Commission was statutorily obligated to issue a timely response to that effect. Failing to respond altogether, as the Commission did initially, constitutes a violation of KRS 61.880(1).
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)." 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or 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. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must comply with KRS 61.872(5). 04-ORD-080; 02-ORD-165. As repeatedly observed by this office, the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-125, p. 5; 04-ORD-080. To avoid future violations, the Commission should adhere to these guidelines when responding to requests submitted under the Open Records Act.
Turning to the substantive issue presented, the subject request is properly characterized as a request for information rather than public records. Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
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.
02-ORD-165, pp. 4, 5. 4 A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records" ), (Emphasis added), validates this position.
In light of these authorities, the Commission could have refused to honor Mr. Moffett's request for information and, therefore, did not commit a substantive violation of the Open Records Act in its belated disposition of his request. To the contrary, the Commission appears to have answered each of Mr. Moffett's questions and has now provided him with records containing the remaining information requested. 5 That being the case, any issues related to those records are now moot. Pursuant to 40 KAR 1:030, Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Applying this mandate, the Attorney General has long recognized that if access to the public records that a requester seeks to inspect or copy is initially denied but subsequently granted, any issue regarding the propriety of the initial denial becomes moot. Id.; OAG 91-140. Because any issues relative to the information/records requested became moot upon the Commission's release of any responsive records, this office must decline to issue a decision on the merits as to those records.
A party aggrieved by this decision may appeal it by initiating an 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 Enclosed with Mr. Moffett's letter were "copies of the permitted use for a lot with R-1 zoning, which is a detached single family dwelling. " According to Mr. Moffett, it does not indicate "that a garage is a permitted use, only that a dwelling is a permitted use. It does add that accessory buildings such as garages are permitted when constructed in conjunction with a permitted use, which again would be a single family dwelling. " As the restrictions prohibited a garage from being built on the lot in question absent a single family dwelling, Mr. Moffett requested further explanation from Ms. Bemiss regarding the garage permit issued to Richard Sparks.
2 Although Mr. Moffett purportedly submitted his request under the Freedom of Information Act, as a "public agency" under KRS 61.870, the Commission is governed by the Kentucky Open Records Act, which is codified at KRS 61.870-KRS 61.884. In Ferguson v. Alabama Criminal Justice Center, 952 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. In short, public agencies in Kentucky such as the Commission are not governed by the federal standard to which Mr. Moffett refers on appeal. Accordingly, our analysis focuses exclusively on whether the Commission complied with the Kentucky Open Records Act. See 04-ORD-090.
3 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. " (Emphasis added). Because Mr. Moffett did not request a reasonably described public record as required to trigger application of this provision, to its credit, the Commission actually did more than the Act requires in providing this information to him.
4 As long recognized by this office, a public agency cannot provide a requester with access to records that it does not have or which do not exist. 04-ORD-046, citing 00-ORD-83; 02-ORD-120; 01-ORD-111; 98-ORD-71; 98-ORD-35; 96-ORD-190; OAG 91-112; OAG 83-111. Because the inability of an agency to produce requested records "due to their apparent nonexistence is tantamount to a partial denial" of a request, however, it is incumbent on the agency to so indicate "in clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38; 00-ORD-83; 97-ORD-16; OAG 91-101; OAG 86-38.
5 Among the records released to Mr. Moffett is a document entitled "Cardinal Club Estates Bonds" which was apparently created to satisfy Mr. Moffett's request. To this extent, the Commission exceeded its statutory duty.