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 Jessamine 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"
a. the name of the animal control officer and the length of time of his or her employment
b. the animal control officer's weekly, monthly, or annual financial compensation
c. hours per week worked as an animal control officer and whether part-time or full-time
d. animal control officer's employment by the county in another department or job capacity
e. animal control officer's accreditation or certification and training programs attended.
f. specific types of lists, records, and reports kept weekly, monthly, and yearly which address or pertain to stray or unwanted dogs and cats and owner relinquished animals (just a few sample copies, not for the entire year)
g. animal control officer's vehicle type and whether furnished by the county or is privately owned by the animal control officer
h. Number of dogs euthanized by gunshot, date, and reason why
2. Records or documentation indicating, referring to, or pertaining to your county's "animal control shelter"
a. printed and published location of the animal shelter including the street address and telephone number (telephone directory listing would be satisfactory) and photographs of facility if available
b. ownership of the animal shelter by the county, privately owned business, individual, or nonprofit organization (and their pertinent names, mailing address, and telephone number)
c. copies of all contractual agreements between county and nonprofit organization, shelter owner, or operator if not county owned
d. name of the part-time or full-time director or manager of the animal shelter and the number of animal shelter employees and whether part-time or full-time
e. itemization of total annual operating costs and expenditures (including all salaries) plus yearly budget ( from June, 2005 through May, 2006 )
f. printed and published hours of operation (copy of)
g. method of euthanization utilized and amount spent per year ( from June, 2005 through May, 2006 ); receipts too
h. number of animals (dog, cats, puppies, and kittens) euthanized per month and total for the entire year ( from June, 2005 through May, 2006 )
i. method of disposal of dead animals
3. Records or documentation indicating, referring to, or pertaining to your county's "application for financial help"
a. letter of application to the Kentucky Department of Agriculture's Animal Control Advisory Board for a grant with which to construct an animal shelter or improve upon the existing one[.]
Mr. Skaggs agreed to prepay reasonable copying charges not to exceed ten cents per page and the cost of postage.
The Jessamine County Fiscal Court responded to Mr. Skaggs' request, through its County Attorney, by advising him that his was an improperly framed request for information and/or answers to questions, as opposed to a properly framed request for specific documents. The Fiscal Court agreed to provide written answers to Mr. Skaggs' questions, but reminded him that if he "desire[d] to look at specific documents [he would] have to make a request for those documents."
On appeal, the fiscal court amplifies on these arguments, asserting that Mr. Skaggs' request lacks the requisite specificity, "and was so overbroad that it conceivably could have covered attendance sheets for monthly supervisor meetings, W-2 forms, minutes of fiscal court proceedings, budgets, animal control policy and procedures manuals, contracts with the Humane Society, letters from numerous departments, memos, and other documentation as well." In support, the fiscal court cited KRS 61.872(2) and (3), as interpreted in 05-ORD-057. Additionally, the fiscal court relied upon, without expressly citing, KRS 61.872(6), asserting that "to gather and produce (i.e., copy) such a large request for records would place an unreasonable burden upon the county." Respectfully, we disagree.
The fiscal court properly quotes that portion of Mr. Skaggs' request that contains a general description of the records sought, but omits the language that follows and that was apparently intended to narrow the scope of the request. For example, part one of Mr. Skaggs' request seeks copies of "[r]ecords or documentation indicating, referring to, or pertaining to [Jessamine 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 Jessamine 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 Jessamine County in the form of records containing the information sought or an unequivocal statement that no responsive records containing that information exist. We note that the fiscal court has identified a number of records that contain the information sought and are, therefore, almost certainly responsive to Mr. Skaggs' request. Mr. Skaggs did not request all such records, but a record containing the information sought, including name, length of employment, and salary, etc., or categories of records, such as reports identifying the number of animals euthanized by month and/or year from June 2005 to May 2006, containing the information sought. While it will no doubt take some time and effort to compile these records, we cannot agree that Mr. Skaggs' request, as framed, imposes an unreasonable burden on the fiscal court. 2
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.
While we commend the fiscal court's willingness to go beyond its statutory duty by preparing written responses to Mr. Skaggs' request, it is records he seeks and records to which he is entitled under the Open Records Act. Until the fiscal court undertakes a search for those records, calculates the costs associated with production of same, obtains prepayment, and transmits the records to Mr. Skaggs, its obligations under the Open Records Act will not be fully discharged.
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
Wm. Neal CassityJessamine County Judge/Executive101 North Main Street, Suite 7Nicholasville, KY 40356
Brian T. GoettlJessamine County Attorney201 S. Main StreetNicholasville, KY 40356
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 In 06-ORD-177 this office declared that a public agency could not:
evade its duty through a claim of unreasonable burden, per KRS 61.872(6), without "forecast[ing] what its actual burden will be." Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005), p. 4. KRS 61.872(6) is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request (or a series of requests) is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence . . . .
Although Department of Corrections v. Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing the proof required for invocation of KRS 61.872(6). A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-0000 86).