Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Bardstown violated the Open Records Act in responding to Kevin Brumley's May 11 and May 19, 2009, request for property address information relating to testing performed on the City's sanitary sewer system. For the reasons stated below, we find that the City's response did not violate the Act.
On May 11, 2009, Mr. Brumley sent his initial letter to the City, stating in part as follows:
I am requesting public records as per KRS 61.870. Specifically I am requesting a copy of the public record referred to as the "smoke test" that was completed in 2007. I am specifically requesting the test that the Kentucky Standard mentioned in their article that identifies "about" 300 properties that the test identified as having "defects or openings" allowing water to get into the sewer system causing overflows. This request is specific and includes the locations of any property mentioned in the smoke test that the city is relying on to send a letter of notice as per the Kentucky Standard article.
?
About 300 letters are going out in the next few weeks asking property owners to repair their sewer lines to keep rain and ground water out of the city's sewer system.
(Emphasis in original.) The City responded on May 14, 2009, with a letter from City Attorney Thomas A. Donan:
In response to your request, the City of Bardstown has enclosed spreadsheets showing the properties where there is a need to repair defects in lateral sewer lines. The spreadsheets have been modified from their original form in order to provide the requested information without the many symbols and footnotes that have been deemed unnecessary for the project. I believe that the enclosed information is responsive to the request that you made.
The enclosed spreadsheets, a copy of which Mr. Brumley attached to his appeal, list numerous defects found in the sewers by the City's study, with each defect assigned certain identification numbers, a street address, and a location description. Several of the street addresses were missing or incomplete, and those particular entries were highlighted by Mr. Brumley.
Mr. Brumley's follow-up letter dated May 19, 2009, clarified his request in the following manner:
Specifically I am requesting a copy of public record [s] as per KRS 61.870 that contain the physical mailing address of each property that has been identified by the 2007 Strand Associates "Smoke Test" Bardstown, as allegedly having defects(s) in the sewer system.
I am specifically requesting the physical mailing address, used by the City of Bardstown, its employees or its agent(s) where a written instrument was mailed out by the City of Bardstown, or its agent, as a notice, to any property owner (s) of any property(s) identified by the 2007 Strand Associates Bardstown Smoke Test, where alleged defects in the sewer system were identified.
This request is specific as to the actual address location of the above identified property(s) and is not inclusive of the name of the individual(s) owning, renting or leasing said property. This request is specific for the address to be identified as to whether the location of the mailing address is designated East or West, and or North or South if the street has both those locations where defects in the sewer line were identified by the 2007 Strand Associates Bardstown Smoke Test.
If a true and accurate copy of the mailing list of property owners is not available within the next 3 days, I then request a copy of ALL original non-modified documents generated by Strand Associates in association with the 2007 Bardstown Smoke Test, including phase 1, phase 2, phase 3, and phase 4.
(Emphasis in original.) Mr. Donan replied on May 22, 2009, as follows:
As you have noticed, determining the physical mailing address of the properties identified by the 2007 Strand Associates Bardstown Smoke Test has been made more difficult by the failure of Strand Associates to identify the location as either east or west or north or south. This information was not provided by Strand Associates unless indicated on your spreadsheet. The City of Bardstown is in the process of trying to determine these locations. The information which we provided to you was the most current information in the City's possession.
Mr. Donan then stated that the City would treat Mr. Brumley's letter as a "continuing request" and would provide periodic updates as the City continued to determine the correct property addresses.
In Mr. Brumley's appeal, initiated May 26, 2009, he complains that the spreadsheets were "modified from their original form. " He believes that the modifications actually removed some of the property addresses, rather than merely "symbols and footnotes ? deemed unnecessary for the project." Mr. Brumley states that his May 19 letter made clear that his request was "specific to the mailing list containing the physical mailing address of the letters mailed out previously to the property owners," and, "if the mailing list was not available," he wanted all of the documents relating to the smoke test. He adds: "I am sure that the primary record requested (mail list) is available or Bardstown would not have been able to mail the notice to the property owners in question on May 14, 2009."
Mr. Donan responded to this appeal on June 4, 2009 and provided certain background information:
When Strand Associates was employed by the City of Bardstown to perform the smoke test, they were provided a sewer system map which included the location of manholes. This was Strand Associates point of reference, not the owner's name and/or the street address of each individual property. Strand Associates did not compile a list of property addresses or locations by address. In order to attempt to notify each property owner, a city employee is using the smoke test photograph of the property and the City Sewer System Map to locate property owners and property addresses. Using information from the Strand Associates' report and other sources, the employee has created a spreadsheet which will be utilized to send a notice to property owners. That spreadsheet is a work in progress. . . . As of the date of this response, a total of twenty-five (25) letters have been mailed to identified properties. The City of Bardstown's Administration is in the process of revising the letter sent with the first twenty-five notifications since the person residing at an address may not be the actual owner of the real estate.
Attached to the response was an affidavit from a City employee verifying the above.
It is the City's position that it provided Mr. Brumley with all of the address information it had at the time of his request, thereby complying with the Open Records Act. In addition, Mr. Donan states that the City has gone beyond what the Act requires by agreeing to provide Mr. Brumley with periodic updates as it learns more addresses and send out additional letters. Finally, with regard to Mr. Brumley's conditional request for the entire Strand Associates report, the City contends (1) that the conditions for this request were not met because the complete list of addresses as of May 14 was available and was provided to Mr. Brumley, and (2) that if the entire report were requested, "most or all" of it would be exempt from disclosure under KRS 61.878(1)(m)1.f.
Successfully invoking KRS 61.878(1)(m), popularly known as the "homeland security" exception, requires a public agency to meet a heavy burden. See, e.g., 09-ORD-100; 05-ORD-175. As of this time, the City has not made a serious effort to meet this burden. We agree with the City, however, that this issue need not be addressed because the primary record requested by Mr. Brumley, the document showing the addresses to which letters had already been mailed, was available and was in fact provided to him.
Based on the affidavit provided by the City, we believe it has adequately been shown that the property addresses missing from the spreadsheet were not removed, but in fact had never been present. The removal at some point of certain "footnotes and symbols . . . deemed unnecessary for the project" is not relevant to Mr. Brumley's request for a list of addresses, but merely something to be expected in a spreadsheet which is still a "work in progress. " 1 The City has not only complied with the request, but did more than it was required to do by treating it as a standing request. 2 See 99-ORD-110; 95-ORD-43; OAG 92-30 (standing request for records not recognized as valid). Accordingly, the City did not violate 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.
Mr. Kevin BrumleyThomas A. Donan, Esq.
Footnotes
Footnotes
1 We infer from the City's response that any earlier versions of the spreadsheet, which would have contained those "footnotes and symbols, " no longer exist.
2 In a follow-up letter to this office dated July 17, 2009, Mr. Donan provided copies of updates that were sent to Mr. Brumley on June 24 and July 14, 2009.