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 Raceland subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in the disposition of Stacy Hannah's July 23, request for copies of city ordinances. For the reasons that follow, we conclude that to whatever extent the City may have represented that charges would be made for staff costs in responding to the request, as prohibited by KRS 61.874(3), the intent of the Act was subverted. Given the state of the record, however, we cannot conclusively determine whether this occurred.
In her July 23 request, Ms. Hannah stated the following:
I am writing to request a copy of ordinances pertaining to the following subjects in the city of Raceland.
*discharge of firearms in the city limits
*on street parking
*whether privacy fences may be placed near the road which hinder the vision of drivers entering the roadway
*junk cars
*recreational fires in contained fire pits
*leash laws
In her letter initiating this open records appeal, dated July 28, 2009, Ms. Hannah gives the following account of her application for copies:
On July 23, 2009 at approximately 11:00 AM I went to the administrative building of the City of Raceland and presented my request for ordinances to the city employee at the office window. I read through the list of my requests with her, and she informed me that there were no ordinances for 2 that I had listed. She said they would be ready in 3 days and that there was a charge of ten cents per copy. She continued by saying that due to the amount of ordinances that I was requesting and the time it would take her to find them, I would be required to pay the hourly wage of the City Clerk in addition to the copy fee. The City Clerk, I was told, was not there at the time. I left the city building, and as I drove home, something just didn't seem right. I arrived home and called to the city building and rescinded my request. I explained to the city employee on the phone that I did not feel that it was right for me to pay the hourly wage of a city employee to do a job she was already being paid to do.
The City of Raceland responded to this appeal on August 20, 2009, by way of a letter from attorney James W. Lyon, Jr., presenting the following contentions:
Please note that the request for open records made by Ms. Hannah was extremely vague. She did not request specific ordinances; she requested ordinances about general subjects, several of which are not even within the province of the city council of the City of Raceland to govern.
For example, the discharge of fire arms in the city limits is governed by State Statute. Request No. 3 is styled in the form of a question which the city clerk was not equipped, or authorized to answer.
The request in regard to on street parking is vague, in that there are two state highways which run through the City of Raceland, and the request did not direct itself to whether parking could be had along those thoroughfares, or whether the request was limited to residential street parking.
There are at least two ordinances in the city which pertain to junk cars.
From my information, the city no longer has a leash law.
In her appeal, Ms. Hannah wrote that she was informed there were no ordinances for two matters on her list. Certainly, the city is not required to generate records when none otherwise exist. Likewise, the open records law does not require giving advice or disseminating information. In as much as the requests of Ms. Hannah sought information in regard to various matters, as opposed to seeking specific records, her complaint has no remedy under the open records law.
I am told that the city employee did tell Ms. Hannah the records we had would be ready within three days, and that there would be a charge of $ .10 per copy. However, the city employee denies that she told Ms. Hannah she would be required to pay the hourly wage of the city clerk in addition to the copy fee. The city employees are fully aware that this practice is illegal, and I am assured that no effort was made to require Ms. Hannah to pay such a fee.
I am also told that the reason Ms. Hannah rescinded her request is that she was friends with a member of the city council, who promised to get copies of the ordinances for her and she need not request them of the city clerk.
We note firstly that pursuant to KRS 61.872(3) the City could simply have allowed Ms. Hannah to inspect the ordinances on the books and copy the ones she wished. Since Ms. Hannah lived in the same county, KRS 61.872(3)(b) did not require the City to locate particular ordinances and provide copies. Furthermore, to the extent that Ms. Hannah's request was for the City to perform legal research, it was not required to do so. 06-ORD-050; 03-ORD-063; 01-ORD-165.
Given that Ms. Hannah withdrew her request, however, the only issue we need decide in this appeal is whether that withdrawal was occasioned by unlawful conduct on the part of the City. The representations in the record are in direct conflict. Since this office does not generally act as a trier of fact, we cannot resolve the disputed factual issue as to whether Ms. Hannah was told that she would have to pay an hourly wage for the city clerk to comply with her request. Cf. 09-ORD-120, p. 4 ("it is not, in general, within our statutory charge to resolve questions of fact or ? otherwise [to] act as a trier of fact" ). As the City acknowledges, however, if that did occur it would be inconsistent with the Open Records Act. Pursuant to KRS 61.874(3), the fee for providing copies of public records may not include "the cost of staff required." Therefore, if such a representation was made to Ms. Hannah and she rescinded her request as a result, then the intent of the Act was subverted within the meaning of KRS 61.880(4).
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 proceedings.