Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Housing Authority of Morgantown subverted the intent of the Open Records Act, short of denying inspection and within the meaning of KRS 61.880(4), in the disposition of Robert D. Cron's three separate April 15, 2011, requests for a copy of the "Contract, or Agreement, between the Butler County Sheriffs [sic] Dept. and the Housing Authority of Morgantown, wher[e]in the Sheriffs [sic] Dept. patrols the Housing Authority," a copy of the "Contracts between the Butler County Fiscal Court and the Housing Authority of Morgantown wherein Constable R.L. Jennings was paid to patrol the Housing Authority [from] 2003-2007," and a copy of the "Contract between Constable R.L. Jennings, the Housing Authority of Morgantown, and former Butler County Sheriff Kenneth Morris . . . for R.L. Jennings patrol [l]ing the Housing Authority [from] 1993-2003," respectively. Mr. Cron delivered his requests in person. The Housing Authority notified him on April 18 (within three business days per KRS 61.880(1)) that all of the requested copies were available, and he picked up the records on April 21 at which time he paid the $ 9.00 copying fee. These facts are not in dispute; however, the parties have completely different recollections of his April 15 verbal exchange with Executive Director Anita Jenkins (allegedly inquired as to his reason for making the request, but she denies asking his purpose), and the actions taken by "staff person" Jewel McIntosh on April 21 (required him to complete a Housing Authority form, a copy of which is attached to his appeal), which ultimately resulted in this appeal. The Attorney General cannot resolve factual disputes; however, to the extent Ms. Jenkins asked Mr. Cron, whether in writing or verbally, what his reason for making the request was, that action violated the Open Records Act notwithstanding the Housing Authority's assertion to the contrary. In addition, the unrefuted facts establish that Mr. Cron was asked to complete a form on April 21 prior to receiving the requested copies, and that action was also contrary to KRS 61.872(2). 06-ORD-084 and 10-ORD-122 are controlling on the legal issues presented.
This office has recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. In other words, the Attorney General "is not equipped to resolve [a] factual dispute [when presented with conflicting factual narratives]." Id. (Citation omitted.) Accordingly, a lengthy recitation of the detailed yet conflicting accounts provided in this case is unnecessary. The Housing Authority concedes on appeal "that the release of the records cannot be made contingent upon the disclosure of the purpose [of asking for] the records," but is "not certain that the [Open Records Act] prohibit[s] someone from asking the question," and further contends that "[s]imply asking the question should not be a violation." This office must respectfully disagree based on existing law. A requester's purpose in seeking access to public records "is irrelevant" as KRS 61.872(2) narrowly defines the information that a public agency is entitled to require from a requester. 06-ORD-084, p. 4. "KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records, or to consider those motives in determining whether the records should be released." Id. To hold otherwise would potentially create a chilling effect on submission of requests that is contrary to the basic policy of the Open Records Act codified at KRS 61.871. 02-ORD-89, p. 9. The only exception to this rule is found at KRS 61.874(4)(b), pursuant to which a public agency is authorized to require a certified statement of commercial purpose when appropriate. KRS 61.874(4)(b) is not implicated in the instant appeal. The reasoning contained in 06-ORD-084, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. Further discussion is unwarranted.
The remaining question is whether the Housing Authority erred, albeit in good faith as its legal counsel argues on appeal, in requiring Mr. Cron to complete a particular form prior to releasing the requested copies. The Housing Authority concedes that the Open Records Act does "not require that a request for records be in any particular format." However, the fact remains that Ms. Jenkins apparently instructed Ms. McIntosh "to notify Mr. Cron that his copies were ready and that when Mr. Cron picked them up to collect the copy charge of $ 9.00 and have Mr. Cron execute the form." Regardless of whether Ms. McIntosh "had no involvement in procuring the records, knew nothing of their content, and was only carrying out the instructions from her superior," this action by the Housing Authority violated the Open Records Act. The Attorney General has consistently held that even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2) , relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. See OAG 76-588; 94-ORD-101; 01-ORD-247; 06-ORD-112; 07-ORD-126. Each of Mr. Cron's April 15 requests complied with KRS 61.872(2). A public agency "may require a written application, as opposed to an oral request," but nothing in the Act "authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. " 94-ORD-101, p. 3. The analysis contained in 10-ORD-122, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. Because KRS 61.872(2) is facially unambiguous, further explanation is unwarranted.
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.
Distributed to:
Robert D. CronAnita JenkinsRichard J. Deye