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 Elkhorn City and its Water and Sewer District violated the Open Records Act in the disposition of requests made on behalf of the Appalachian News-Express on April 18 and 24 and May 9, 2012, to inspect records relating to outstanding water bills owed to the district. For the reasons that follow, we find that the district's responses were not in compliance with the Act.
In his April 18 request addressed to Elkhorn City's custodian of records, staff writer Ron Coleman stated the following:
Under Kentucky's Open Records Act, I am requesting to inspect or be supplied a copy of documentation showing the following information:
A listing of all outstanding water bills owed to Elkhorn City's water department, including, but not limited to, information showing the amount outstanding, as well as the individual or business who owes the amount. 1
City Clerk Karen Cantrell responded on April 24, 2012, stating:
At this time the City of Elkhorn City is unable to comply with your open records request.
Our attorney is concerned that release of the information you requested would be a violation of the Fair Debt Collection Act [ sic ] and at present he has been unable to find an exception which would allow the release of the information.
We are still researching this matter and will be more than happy to comply once we have determined that it would not be a violation of any law to do so.
Mr. Coleman made a second request to the City on April 24, 2012, as follows:
We understand from Mayor Mike Taylor's public comments and statements to the News-Express that there are one or more customers of the Elkhorn City Water District who owe in excess of $ 100,000 in outstanding water bills to the City's water district. We are requesting to inspect or be supplied all records of debts, collection efforts and correspondence, electronic or otherwise, and any other records related to any customer who has owed the district $ 50,000 or more in the last five years.
City Clerk Karen Cantrell responded on April 27, 2012, stating: 2
Our city attorney has advised me that you request was addressed to the City of Elkhorn City and should be addressed to the Elkhorn City Water Department as these are two different entities. He also informed me that he fears that release of the information you requested would be a violation of the Fair Debt Collection Act [ sic ] and at present time he has been unable to find an exception which would allow the release of the information.
We are still researching this matter and will be than [ sic ] happy to comply once we have determined that it would not be a violation of any law to do so.
Following this, Mr. Coleman made an identical request addressed to the custodian of records for the Elkhorn City Water and Sewer District on May 9, 2012, and received an essentially identical response from City Clerk Karen Cantrell dated May 10, 2012.
The newspaper's editor, Russ Cassady, initiated an open records appeal on May 17, 2012, stating in part as follows:
We are not contesting the amount of time it took for [the City's April 24] response to be issued, since there was verbal communication from the agency prior to the official denial being issued.
After changes made in the request, we submitted two other requests for similar documentation [.] Despite changes to be more specific in our request as well as more specific in the agency from which we are requesting the documentation, the agency has continued to deny our request based on the Fair Debt Collection Act [ sic ].
We believe the documentation is public and is in the public's interest[.]
In a response submitted by City Attorney Timothy D. Belcher, the City and the Water District 3 state as follows:
The Elkhorn City Water District and The City of Elkhorn City is concerned that the release of private customer data could be a violation of numerous privacy statutes.
We are concerned about the parameters of such requests now and in the future. For instance, are we obligated to release one customer's water or sewage bill to another customer if they file an open records request?
As you are aware Cities do not have sovereign immunity as does the state and county government. This is a major concern for a small City and Water district.
The Elkhorn City Water District request[s] direction and clarification regarding such requests now and in the future.
KRS 61.880(1) declares that "[a]n 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." This language "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.App. 1996). In this instance, the City and its Water District violated the Act by withholding documents without citing an applicable statutory exception under KRS 61.878.
The records custodian and city attorney allege that a statute prohibits disclosure of the requested records, which would imply that they are attempting to invoke KRS 61.878(1)(k) or (1)(l), which respectively exempt from disclosure "public records or information the disclosure of which is prohibited by federal law or regulation" and "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." At no time, however, have they cited either of these exceptions as required by KRS 61.880(1). Moreover, they have not cited any specific federal or state statutory provision that they believe applies to the requested records, nor explained how it supposedly applies. 4 A mere mention of "the Fair Debt Collection Act, " or a vague reference to "numerous privacy statutes," does not constitute a sufficient statement of an agency's basis for denying access to public records under KRS 61.880(1). Accordingly, we find that the responses by the City and its Water District violated 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 proceedings.
Distribution:
Russ Cassady, Editor Karen Cantrell, Clerk Timothy D. Belcher, Esq.
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