Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Prospect violated the Open Records Act in the disposition of Michael H. Brown's October 2, 2006, request for copies of the City's noise ordinances and a transcript of the Prospect City Council meeting held on September 18, 2006. For the reasons that follow, we find that the City's response was consistent in part and inconsistent in part with the requirements of the Open Records Act.
By fax dated October 2, 2006, Ann Simms, City Administrator, advised Mr. Brown: "We are referring this to our attorney and we suggest you have your attorney contact our attorney, Grover Potts."
In his letter of appeal, dated November 15, 2006, Mr. Brown stated that while the response was issued in a timely manner, the City did not state whether it would respond to his request or why the requested records were not provided.
After receipt of notification of appeal, Grover Potts, City Attorney, by letter dated November 28, 2006, provided this office with a response to the issues raised in the appeal. In his response, Mr. Potts advised in relevant part:
. . . the information about which Mr. Brown is complaining has already been available to him or is accessible by him on the Prospect website. On September 11, 2006 and September 19, 2006, Mr. Brown was faxed copies of Prospect Ordinances 92.03 and 92.05, both of which deal with noise and are the only extant ordinances pertaining to noise enacted in Prospect. Mr. Brown also requested a transcript of the September 18, 2006 Prospect City Council Meeting. As Mr. Brown and all residents of Prospect have been informed, transcripts of Prospect City Council Meetings are available on Prospect's website at prospectky.com.
As a public agency, the City must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to 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).
The City's initial response was deficient in that it failed to advise Mr. Brown whether it was going to comply with his request or was denying in whole or in part, inspection of records responsive to his request. This failure to comply with the requirements of KRS 61.880(1) was a violation of the Open Records Act.
Addressing the substantive issues, the City advised that copies of the requested noise ordinances had been provided to Mr. Brown and other records responsive to his request were available for his inspection on the City's website. The issue as to access to the requested noise ordinances in this appeal is moot as the City has provided Mr. Brown with those records. 40 KAR 1:030, Section 6, provides:
Moot Complaints. If the 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.
Accordingly, since the City has provided the requested ordinances to Mr. Brown, this issue as to them is moot and no decision will be rendered in that regard. However, in 05-ORD-050, p. 2., this office questioned whether furnishing a requester with a website address where records responsive to his or her request can be located, in lieu of affording the requester an opportunity to inspect the records or receive copies by mail upon receiving payment of a reasonable copying charge, satisfies the obligations of an agency under the Open Records Act. KRS 61.872(1)-(3). At note 1 of that decision, this office reasoned that "while a requester may wish to avoid the efforts associated with conducting onsite inspection, or the expenses associated with payment for copies, he or she may not have access to a computer or the necessary skills to obtain the records electronically." 05-ORD-050, p. 2. In 05-ORD-277, this office found that such a practice is not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3). Accordingly, the City violated the Open Records Act in effectively denying Mr. Brown's request on this basis.
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 6.1882. 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.