Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kenton County Fiscal Court violated the Open Records Act in the disposition of Randy Skaggs' June 12, 2006, request for financial and operational records relating to implementation of KRS 258.195 1 for the period from June 2005 through May 2006. Those records were specifically identified as:
1. Records or documentation indicating, referring to, or pertaining to your county's "animal control officer"
2. Records or documentation indicating, referring to, or pertaining to your county's "animal control shelter"
3. Records or documentation indicating, referring to, or pertaining to your county's "application for financial help"
Mr. Skaggs agreed to prepay reasonable copying charges not to exceed ten cents per page and the cost of postage. Having received no response to his request, Mr. Skaggs initiated this appeal on February 9, 2007. Pursuant to 40 KAR 1:030 Section 2, this office issued notification of Mr. Skaggs' appeal to the Kenton County Fiscal Court.
In a response to Mr. Skaggs' appeal, Kenton County Fiscal Court, through its County Attorney and Human Resource Director, explained why "no response was given" to his request. They explained that the fiscal court did not:
consider the "attachment", a copy of the face sheet is attached, to be a legitimate Open Records Request. By its very nature, with the caricature of a Hilly-Billy, no rational person would place any credibility to any document which had such on its face. It was rejected and discarded. Furthermore, Kenton County will continue to disregard this item as anything legitimate, to which it need not respond.
Furthermore, a brief review of the items set forth on page two, of the document reveals that items 1 and 2 do not ask for records but rather conclusions and information. Kenton County is not required to answer question for Mr. Skaggs benefit. Item 3 almost asks for a record and a copy of such is attached to this response.
If Mr. Skaggs wishes to request documents or records of Kenton County, he should do so appropriately (in good taste) and ask for records not conclusions.
In closing, the fiscal court urged this office to agree with its conclusion in "the best interests of the Commonwealth." Respectfully, we cannot agree.
In discharging its obligations under the Open Records Act, the Office of the Attorney General focuses exclusively on the language of the Act. KRS 61.872(2) states that the official custodian of a public agency may require a records requester to submit a "written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." See, 94-ORD-101. The fiscal court does not argue that Mr. Skaggs' request fails to satisfy the statutory requirements, but instead objects to extraneous material appearing on the request, namely, the caricature of a hillbilly. We find no legal basis in the language of the Act for the position that the requester's inclusion of extraneous material in his or her request relieves the agency of its statutory obligations under the Act. "While an open records request may not be the proper vehicle for criticism of official conduct and argumentation," 98-ORD-62, p. 2, we believe the interest of the Commonwealth is best served by an agency's strict adherence to the legal requirements of the Act, including a timely written response to an open records request, notwithstanding the tenor of that request or the presence of extraneous material thereon.
The Kenton County Fiscal Court also argues that Mr. Skaggs' request is an improperly framed request for conclusions and information. We do not agree. Mr. Skaggs' request contains three parts, each of which consists of a general description of the records sought followed by items of information he hopes to obtain through those records. For example, part one of Mr. Skaggs' request seeks copies of "[r]ecords or documentation indicating, referring to, or pertaining to [Kenton County's] 'animal control officer'" and then lists eight items of information that he wishes to obtain through those records. Although inartfully drafted, his request should, in our view, be read as a request for records pertaining to the Kenton County Animal Control Officer that include his or her name, length of employment, salary, full or part-time status, additional county positions held, etc. When read in this light, we find that Mr. Skaggs' requests were sufficiently specific to require a response from Kenton County in the form of records containing the information sought or an unequivocal statement that no responsive records containing that information exist.
On this issue, the Attorney General has observed:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island, 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] wishes to access.
99-ORD-140, p. 6, cited in 00-ORD-235; 03-ORD-012; 07-ORD-001. Mr. Skaggs identified the records to which he sought access by general description. He then narrowed the scope of his request by referencing the particular information in which he was interested and restricted his request to a one year period. We believe that, having done so, the burden shifted to the fiscal court to locate responsive records and make them available to him upon receipt of reasonable copying charges. If no responsive records exist, it was incumbent on the fiscal court to so notify Mr. Skaggs. Until the fiscal court undertakes a search for records, calculates the costs associated with production of same, obtains prepayment, and transmits the records to Mr. Skaggs, or, alternatively, notifies him that no responsive records exist, its obligations under the Open Records Act will not be fully discharged. 2
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.
Randy Skaggs
Ralph DreesKenton County Judge ExecutiveP.O. Box 792Covington, KY 41012-0792
Joe ShriverHuman Resource DirectorKenton County Fiscal CourtKenton County Building, Room 205303 Court StreetP.O. Box 792Covington, KY 41012-0792
Gary Edmondson, Esq.Kenton County Attorney303 Court Street, Room 307Covington, KY 41011
Footnotes
Footnotes
1 KRS 258.195 provides as follows:
(1) The governing body of each county shall employ, appoint, or contract with an animal control officer, or shall contract with an entity that employs, appoints, or contracts with an animal control officer, and shall establish and maintain an animal shelter as a means of facilitating and administering KRS 258.095 to 258.500. One (1) or more counties may enter into intergovernmental agreements for the establishment of regional animal shelters, or may contract with entities authorized to maintain sheltering and animal control services. Animal shelters shall meet the standards provided by KRS 258.119(3)(b) within three (3) years after July 13, 2004. Governing bodies may adopt additional standards and ordinances related to public health, safety, enforcement, and the efficient and appropriate operation of their shelters and their animal control programs.
(2) Cities may employ, appoint, or contract with animal control officers, or may contract with an entity that employs, appoints, or contracts with animal control officers, for the enforcement of this chapter and local animal control ordinances within their corporate limits. Cities may enter into agreements with the counties for the enforcement of the county's animal control ordinances. The agreement shall include, but shall not necessarily be limited to, setting out the jurisdiction and the duties of the animal control officer respective to the agreement.
(3) Animal control officers shall have the authority to issue uniform citations, local citations, or local notices for the enforcement of the provisions of this chapter, the provisions of the Kentucky Revised Statutes relating to cruelty, mistreatment, or torture of animals, and animal control ordinances in their respective jurisdictions.
2 We acknowledge that the fiscal court produced documents in response to part three of Mr. Skaggs' request and applaud its efforts in this regard.