Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bluegrass Workforce Investment Board violated the Open Records Act in the disposition of Charles E. Payne's March 12, 2012, request for access to, and an "electronic copy of, all records pertaining to the planned use by the . . . Board of the former Excepticon property located at 1393 Trent Blvd. in Lexington, KY . . . including . . . general program information[,] staffing[,] . . . [and] project history." Under the latter subpart, Mr. Payne requested "[a]ll records from meetings with [Bluegrass Area Development District] or others relevant to the planning of the project, including any organizations or programs in Texas, and the current status of the project and short term as well as long term projections for implementation of the program and its goals." On behalf of the Board, Bluegrass Area Development District Executive Director Lenny Stoltz 1 initially advised Mr. Payne that "a written request must be on our adopted form," but retreated from this position in subsequent correspondence explaining that his request did "not 'state clearly the specific public record or records that are desired for inspection and/or duplication' as required by Section I G. of the [BGADD] adopted [open records] policy." It was his position that Mr. Payne's request was improper because he "asked questions as opposed to sighting specific documents which [he] wish[ed] to review." While we agree with BGADD that, as a general rule of open records law, it is not obligated to answer questions to fulfill an open "records" request, we do not agree that Mr. Payne's request consisted entirely of questions or that it did not "describe the materials sought with enough specificity to allow the agency to identify and locate the records."
Dissatisfied with the Board's March 15 response to his request, Mr. Payne initiated this appeal questioning Mr. Stoltz' apparent denial of his request without citation to any statutory authority. In supplemental correspondence directed to this office, Mr. Stoltz defended the Board's insistence on the use of the prescribed open records request form explaining that this practice facilitates immediate recognition of a request as such. "Embedding an open records request in a letter," Mr. Stoltz maintained, "could cause a delay in recognizing the request due to the volume of mail we receive on a regular basis." He reiterated that the Board could not respond to Mr. Payne, in any event, because his letter consisted of a series of questions rather than a records request framed with "enough specificity to allow the agency to identify and locate the records." It was the agency's position that it "did not deny the open records letter submitted by Mr. Payne," but that Mr. Payne "failed to identify the records he was looking for" and that Mr. Stoltz's offer to discuss this matter with him "to get some clarification . . . was apparently rejected." We agree only in part with the agency's position.
To begin, neither BGADD nor the Board can require an open records requester to submit his or her open records request on the agencies' prescribed open records request form. In 11-ORD-080 the Attorney General rejected this "hackneyed canard" concluding that the City of Carrollton violated KRS 61.880(1) by failing to respond to an open records request because the requester "did not comply with a city policy requiring the submission of an open records request on a preprinted form developed by the city." Id. at page 5. A copy of 11-ORD-080 is attached hereto and the reasoning set forth therein is incorporated by reference. KRS 61.872(2) overrides agency policy and that statute is satisfied "if the written application, whether or not submitted on the public agency's form, contains the applicant's signature, the applicant's name printed legibly, and a description of the records to be inspected. " 94-ORD-101, p. 2 cited in 11-ORD-080, p. 4. Unlike the agency in 11-ORD-080, the Board and BGADD did not refuse Mr. Payne's request on this basis, but the policy referenced throughout its correspondence is unenforceable. Open records appeals premised on the Board's or BGADD's refusal to honor an open records request not submitted on the agencies' prescribed form will result in an open records decision adverse to the agencies.
As noted above, KRS 61.872(2) requires a description of the records to be inspected. In 12-ORD-082, the Attorney General analyzed this statutory requirement in light of the Kentucky Supreme Court's opinion in
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). A copy of 12-ORD-082 is also attached and its reasoning incorporated by reference. At page 3 of 12-ORD-082, we quoted extensively from the Supreme Court's opinion in Chestnut :
[N]othing in KRS 61.872(2) 2 contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected. " We must interpret statutes as written, without adding any language to the statute, even in open records cases. [Footnote omitted.] And it is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described.
. . .
Because we lack the power to rewrite the open records act, we cannot add a particularity requirement where none exists. Chestnut described the records he wanted to see-the content of his inmate file. It appears obvious to us that Chestnut's request was adequate for a reasonable person to ascertain the nature and scope of Chestnut's open records request. [Footnote omitted.] He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen. [Footnote omitted.]
Chestnut at 661, cited in 12-ORD-082, pages 3 and 4.
Here, as in 12-ORD-082, we find that, judged by the on-site inspection standard found at KRS 61.872(2), Mr. Payne's request was "adequate for a reasonable person to ascertain [its] nature and scope" and thereafter "locate, and produce for inspection, the records sought." Id. at 5. He requested "access to and [to] obtain an electronic 3 copy of all records pertaining to the planned use by the Bluegrass Workforce Investment Board of the former Excepticon property located at 1393 Trent Blvd. in Lexington, KY owned by the Bluegrass Area Development District." He then provided parameters for the agency's search, signified by the use of the term "including," by identifying three broad subject areas, "general program information," "staffing," and "project history," and specific areas of concern within those subject areas. In some instances, these areas of concern were framed as questions. For example, within the first broad subject area, subpart 1 states:
1. Details of the employment/reentry program.
a. Who will be housed there?
b. What is the screening process for applicants to the program as well as the approval process including disqualification criteria (i.e., are there restrictions on who can apply)?
With reference to these inquiries, Mr. Payne sought access to general program records describing the screening process for program applicants and identifying the likely or actual participants. The use of "interrogatories" to indicate the scope of his request did not render that request improper or relieve the Board of its duty to conduct a search for responsive records.
Clearly, Mr. Payne did not identify the requested records with sufficient precision to trigger the Board's duty to mail him copies pursuant to KRS 61.872(3)(b). 4 The Board is nevertheless obligated to conduct a search for responsive records and produce them for Mr. Payne's inspection. Depending on the Board's recordkeeping system, it may be required to undertake a search in more than one location to locate all responsive records, but it cannot "rely on any inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Chestnut at 666. Mr. Payne requested records relating to the planned use of a single property acquired by BGADD for the inmate re-entry program. "He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file he had never seen." Id. at 661. We therefore reject the Board's position that he did not "describe the materials sought with enough specificity to allow the agency to identify and locate the records."
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:
Charles E. PayneLenny Stoltz IIDaryl Smith
Footnotes
Footnotes
1 Mr. Stoltz identifies himself as official custodian of records for both BGADD and the Bluegrass Workforce Investment Board. The Board's Chairman, Daryl W. Smith, describes BGADD as the Board's fiscal and administrative agent and confirms Mr. Stoltz' status as its custodian of records. While records of the Board are clearly public records within the meaning of KRS 61.870(2), discretion rests with BGADD and the Board to designate an official custodian of the Board's records. KRS 61.876(1)(b); KRS 61.870(5). Mr. Stoltz has been designated to fulfill this statutory duty for the Board, and we find no error in this designation. Mr. Payne's objection to the response issued by Mr. Stoltz on the Board's behalf is therefore without merit.
2 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected . The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(Emphasis added.)
3 Pursuant to KRS 61.874(2)(a), Mr. Payne is only entitled to copies in an electronic format if "the agency currently maintains the records in electronic format . . . . Agencies are not required to convert hard copy records to electronic formats. "
4 KRS 61.872(3)(b) provides that a person may inspect public records:
By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.