Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Mt. Vernon violated the Kentucky Open Records Act in failing to respond upon receipt of Michael Sheliga's written request dated September 19, 2008. In failing to issue a written response within three business days and provide Mr. Sheliga with timely access to signed copies of the signed proof of receipt forms required under KRS 65.055(2) "for current [C]ity [C]ouncil members who have been newly elected since September 2005," the City violated the express and mandatory terms of KRS 61.880(1). Although the City provided Mr. Sheliga with a copy of certain responsive forms upon receipt of his appeal, it did not provide him with all records responsive to his request or provide any explanation for its inability to do so.
By letter directed to Mayor Clarice Kirby "or Open Records Officer" on September 19, 2008, Mr. Sheliga requested the following:
1) A copy of the proposed annexation map hanging on the wall of City Hall near the copier. A 6 page black and white copy using 8.5" x 11" paper, made on the copying machine next to the map would be fine.
. . .
2) A copy of the first page of the "certif[ied] list of property owners to whom the [proposed annexation] notice was sent" and which "certified list shall be [has been] made part of the official record of the meeting [of the Mt. Vernon City Council on Monday September 15, 2008] at which the ordinance proposing annexation receives [received] its second reading," pursuant to KRS 81A.425.
3) A copy of the "Proof of Rec[ei]pt" of the "Your Duty Under [the] Law" Open Records handbook sent to your office by the Attorney General in September 2005, for current [C]ity [C]ouncil members who have been newly elected since September 2005. [Emphasis added.]
Having received no response to his written request, Mr. Sheliga initiated this appeal by letter dated October 17, 2008, but received on October 21, 2008, advising that he ultimately received a document responsive to Item 2 of his request; 1 however, the City had not honored Item 3. One City employee did show him "that they had at least obtained a copy of this booklet" and told him "that they would distribute it after the next election." In addition to the procedural violation discussed below, the City violated the Open Records Act in the ultimate disposition of Mr. Sheliga's request by failing to produce all records responsive to his third request and in failing to provide any explanation for its inability to do so. The City's apparent inability to produce the current "Proof of Receipt" forms at the time of the request also demonstrates a lack of compliance with KRS 65.055.
As a public agency, the City is obligated to comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access generally speaking. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. 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.
(Emphasis added). To clarify, "the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, p. 3. In construing the mandatory language of this provision, the Kentucky Court of Appeals observed that "[t]he language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208. It stands to reason that failing to issue a written response, as the City did here, constitutes a violation of the Act.
In addition, City's belated response lacks the specificity envisioned by KRS 61.880(1) insofar as the City merely forwarded a copy of the responsive forms without explanation. Bearing in mind that public agencies have the burden of proof under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide detailed and particular information in response to a request for documents," this office must conclude that the City's response was procedurally deficient.
Edmondson v. Alig, supra, at 858; 97-ORD-170. To avoid future violations, the City should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
In requesting a copy of "the proposed annexation map hanging on the wall of City Hall," Mr. Sheliga explained that the City had "recently attempted to charge $ 6.00 for a 6 page black and white copy of this map" but noted that under KRS 61.874(1) and
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), that fee is excessive and ten cents per copy is considered a reasonable fee. On appeal, Mr. Sheliga argues that in the absence of any justification for imposition of a fee in excess of ten cents, he "should be able to get a 6 page copy of the annexation map for $ 0.60." In accordance with 01-ORD-136 and the authorities upon which that decision is premised, including Friend v. Rees, this office agrees; a copy of that decision is attached hereto and incorporated by reference. 2
Turning to the substantive issues presented, this office notes that Mr. Sheliga requested "the "Proof of Rec[ei]pt" of the "Your Duty Under [the] Law" Open Records handbook sent to your office by the Attorney General in September 2005, for current [C]ity [C]ouncil members who have been newly elected since September 2005," and received, albeit belatedly, the proof of receipt forms executed in October 2008 following distribution of the materials by the Attorney General in July 2008. In July 2005, the Office of the Attorney General was statutorily charged with the duty to distribute explanatory materials regarding the Open Records and Open Meetings Acts, and records management and retention, when KRS 15.257 took effect. Pursuant to companion legislation codified at KRS 65.055(1), 160.395(1), and 164.465(1), the specified officials are required to discharge corollary duties on a continuing basis. Mr. Sheliga's appeal resulted, at least partially, from the City's apparent failure to comply with KRS 65.055, effective June 20, 2005.
In his September 19 request, Mr. Sheliga asked the Mayor to provide him with a copy of the "signatory proof" of receipt form required under KRS 65.055(2) for each of the current members of the City Council "who have been newly elected since" September 2005. This office has twice discharged its statutory duty to distribute explanatory materials relating to Open Records, Open Meetings, and records management. The first distribution occurred in September 2005, ninety days after enactment of KRS 15.257 and its companion legislation. The second distribution occurred in July 2008, within sixty days of the enactment of legislation amending the Open Meetings Act to permit e-mail notification of special meetings. In each case, the Mayor's duty to distribute these materials to all elected and appointed officials and members within sixty days of receipt, pursuant to KRS 65.055, was triggered along with the corresponding duty to obtain a signed proof of receipt from all recipients and certify distribution to the Attorney General. Although the City did belatedly provide this office and Mr. Sheliga with a copy of "Proof of Receipt" forms dated October 27, 2008, and October 28, 2008, the City did not provide this office or Mr. Sheliga with a copy of the "Proof of Receipt" forms executed after the September 2005 mandatory distribution of explanatory materials or provide any explanation for its inability to do so. To this extent, its disposition of Mr. Sheliga's request was substantively deficient. 3 Until this deficiency is corrected, the City stands in violation of the Open Records Act.
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.
Footnotes
Footnotes
1 Because the City provided Mr. Sheliga with a copy of the responsive document, any related issues are moot per 40 KAR 1:030, Section 6.
2 Because the record is devoid of any written proof that the City attempted to charge Mr. Sheliga a fee in excess of ten cents per copy in response to his written request, this office cannot find that a violation occurred; however, the City did not refute this allegation in responding to his appeal.
3 The City offers no explanation for the failure to comply with KRS 65.055(1) by distributing these materials in a timely manner, and 65.055(2) by obtaining the signatory proof of receipt from each member, and maintaining that documentation on file; likewise, the undersigned counsel discovered upon further inquiry that certification of the distribution was not received in this office per KRS 65.055(2) until after Mr. Sheliga initiated the instant appeal. Although not actionable under the Open Records Act, the City's apparent noncompliance with KRS 65.055 constitutes a separate but related statutory violation.