Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Hustonville violated the Kentucky Open Records Act in denying the August 8, 2012, request of Editor Benjamin R. Kleppinger, The Interior Journal , for "access to and copies of city ordinances 54, 55, 56, 57 and 58 that were given first readings" during the August 7, 2012, regular meeting of the Hustonville City Council. In a timely written response, City Clerk Rita Clem denied Mr. Kleppinger's request "due to 'A City may properly deny a standing request since the Open Records Act only governs access to existing records and not to records that will be created in the future,' [97-ORD-018]" without further explanation. Mr. Kleppinger initiated this appeal shortly thereafter, advising that "Mayor Marc Spivey read aloud each of the ordinances during the Aug. 7, 2012, meeting" and the City Council "passed first readings of each ordinance. " Mayor Spivey permitted Mr. Kleppinger "to look briefly at the front page of the ordinances, " he further advised, but City Attorney Carol Hill told him that he "could not have copies because the ordinances were 'preliminary documents.'" Mr. Kleppinger correctly noted that the City's "official response" to his "subsequent open records request appears to claim that the ordinances that passed first reading do not exist yet." 1 He disagreed as he "was present for the [M]ayor's readings of the ordinances in open session," he observed the City Council "approve the first readings," and he "saw the front page of one of the ordinances. "
Upon receiving notification of Mr. Kleppinger's appeal from this office, Ms. Hill responded on behalf of the City, acknowledging that during the City Council's August 7 regularly scheduled meeting "five 'Proposed Ordinances' were introduced by individual councilmembers who asked for the first reading of the 'Proposed Ordinances. ' Of these five 'Proposed Ordinances' none have been passed or approved in any manner, as that is not how an ordinance is enacted[. See] KRS 83A.060." In the City's view, Mr. Kleppinger "has never properly requested these items and has not reported on this incident correctly. . . . No ordinances exist at this time and nothing has been passed or approved." Refuting Mr. Kleppinger's assertion that he observed the City Council "approve the first readings," Ms. Hill clarified that he "saw individual councilmembers introduce 'Proposed Ordinances' and ask for a first reading. " Mr. Kleppinger "has incorrectly characterized the process," the City concluded, "and has not made a proper request for open record documents that exist."
Public agencies cannot produce nonexistent records for inspection or copying; 2 however, a reasonable interpretation of Mr. Kleppinger's request, when viewed in context, is that he was asking for the ordinances read aloud by individual councilmembers or the Mayor 3 during the August 7 regular meeting of the City Council, regardless of whether he used the modifier "proposed," as the City did belatedly, or not. His request was "adequate for a reasonable person to ascertain its nature and scope . . . ." and was therefore sufficiently descriptive under
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). Because Mr. Kleppinger apparently resides and works in the county where the records are located, the City was authorized to require inspection of potentially responsive documents prior to providing copies by mail per KRS 61.872(3) even assuming that he "precisely describe[d]" the records being sought. 4 However, the City was not permitted to deny access entirely notwithstanding its belated argument regarding the legal distinctions between "ordinance" and "proposed ordinance" and Mr. Kleppinger's failure to employ the proper legal terminology. See 12-ORD-049; 12-ORD-128.
Unable to determine "whether any existing document is responsive to Mr. Kleppinger's request and what basis, if any, the City is relying upon to deny access if so" based upon the limited evidence presented, this office asked the City to provide us with additional information per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. Specifically, the Attorney General inquired as follows:
Regardless of whether they have been formally "passed or approved," please clarify whether the "Proposed Ordinances" to which you referred in your August 22, 2012, letter were reduced to writing prior to being read aloud in the August 7 public meeting. If so, did these records exist on August 8? Also, please elaborate upon your assertion that Mr. Kleppinger has "mischaracterized the process." To date, the City has not cited a statutory basis for denying access to any existing "Proposed Ordinances, " which appear to be responsive to his request (notwithstanding his identification of the ordinances by number), as required to satisfy its burden of proof under KRS 61.880(2)(c). Please explain the statutory basis, if any, for denying Mr. Kleppinger access to said records per KRS 61.880(1).
In a timely written response, Ms. Hill first provided the dictionary definition of "Ordinance" (a "permanent rule of action; a law or statute," most commonly "used to designate the enactments of the legislative body of a municipal corporation") noting that it "is a very specific legal term." (Citations omitted.) Ms. Hill then confirmed that on August 7 "proposed ordinances # 54, # 55, # 56, # 57, and # 58 were reduced to writing and given a first reading. " However, she further advised, when the August 8 request was received, "no ordinances existed at that time. There was no document representing a 'permanent rule of action.'" With regard to her assertion that Mr. Kleppinger "mischaracterized the process," Ms. Hill advised that she "think[s] Mr. Kleppinger intended to ask for the proposed ordinances. " However, they "were not ordinances as they were not permanent at that point." The City is "not relying on a statutory exception," Ms. Hill explained, the agency is "stating that while a proposed ordinance existed at the time of the request, an ordinance did not exist, and an ordinance is what was requested."
Subsequently, Ms. Hill observed, the City Council met on September 4. 5 "Proposed Ordinance # 54, # 55, and # 56 had a second reading" and the City Council passed "these three ordinances. Preliminary copies of these documents were given to Mr. Kleppinger. A properly executed copy of all three of these ordinances will be sent to the Interior Journal for publication." 6 Proposed Ordinances # 57 and # 58, Ms. Hill continued, "were given a second reading and did not pass. These two ordinances will never be ordinances. " However, the City agreed to honor a "properly submitted request" if Mr. Kleppinger wants a "copy of the proposed ordinances. "
Noting that he first requested in person what the City is now referring to as "Proposed Ordinances, " and submitted a written request after the City advised that he could not obtain copies because they were "preliminary," Mr. Kleppinger persuasively argued that "City officials were well-aware of the documents I wanted and knew the meaning of the words in my request, regardless of what dictionary they can find to define my words otherwise." The City "denied my request in writing," Mr. Kleppinger continued, "by stating that the records do not exist, even though they knew what specific documents I was requesting and knew that they existed. At no point was I given any explanation by the [C]ity as to why" it claimed the records did not exist. Mr. Kleppinger reiterated that he "was never (until today) given a clear explanation of the" City's "apparently persnickety vocabulary," but has been told "multiple times" by City officials that such records are "preliminary." In light of the foregoing, Mr. Kleppinger concluded that the City "is making one argument in face-to-face discussions with me and making another, entirely different argument" on appeal. His point is well-taken as the City has not disputed his account of the events which precipitated his request or those which followed.
Mr. Kleppinger sought access to public records 7 that unquestionably existed on the date of his request(s). A reasonable person would have deemed the records belatedly characterized as "Proposed Ordinances" by the City at least potentially responsive on the facts presented. The City did not initially offer any explanation of its position that no such records existed. However, expecting a requester to fully understand the statutory process for enacting an ordinance and the legal distinctions between a "Proposed Ordinance" and "Ordinance" would improperly create impediments to public access by shifting the statutory burden of proof to a requester. The City's belated argument regarding the semantics of Mr. Kleppinger's request is unpersuasive. See 10-ORD-064; 11-ORD-013; 11-ORD-050. Accordingly, this office concludes that Mr. Kleppinger's request was adequate to enable the City to identify and locate potentially responsive public records when evaluated in light of Commonwealth v. Chestnut , above. In the absence of a statutory basis to justify its denial, the City violated the Act in failing to make any existing records that were potentially responsive to his request, i.e., ordinances "that were given first readings," or the ordinances "introduce [d]" by individual councilmembers who "ask[ed] for a first reading" of same during the City Council's August 7 regular meeting, a.k.a., "Proposed Ordinances, " available for inspection per KRS 61.872(2). To hold otherwise would elevate form over substance.
In
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008), the Kentucky Supreme Court established the standard by which this office must assess the adequacy of a request to inspect public records, declaring that such a request need only be "adequate for a reasonable person to ascertain [its] nature and scope." The Court expressly rejected the agency's claim that the subject request was "too broad and overly vague." Emphasizing the presumption of openness 8 and the fundamental principle that "any person" enjoys an equal right of access to nonexempt public records, 9 the Court determined that the law "identifies no class or type of persons . . . who are held to a more stringent standard when submitting open records requests," and that the agency " bears the burden to rebut the strong presumption in favor of disclosure ." Id. at 660 (emphasis added).
In addressing the adequacy of the request by Chestnut for his "inmate file excluding any documents that would be considered confidential," the Court rejected the claim that he was required to "describe the record with reasonable particularity, " Chestnut at 658, reasoning as follows:
[N]othing in KRS 61.872(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 . . . . [I]t is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described .
. . .
[The requester] described the records he wanted to see . . . . It appears obvious to us that [his] request was adequate for a reasonable person to ascertain the nature and scope. [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 . . . that he had never seen. [Footnote omitted.]
Chestnut at 661.
In so holding, the Court expressly contrasted the standard for evaluating the adequacy of Chestnut's request under KRS 61.872(2) with a request to access the records by receipt of copies through the mail under 61.872(3), noting the absence of a particularity requirement in the former and the presence of such modifying language in the latter, and endorsing the "astute holding" of the District Court of Rhode Island that an Open Records request:
should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure. Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979).
Chestnut at 662 (emphasis added). See 10-ORD-076; 12-ORD-135; 12-ORD-137.
Assuming for the sake of argument that Mr. Kleppinger failed to "precisely describe" the ordinances being sought, which is debatable under the circumstances presented, his request identified the ordinances with adequate specificity to satisfy KRS 61.872(2), particularly when the request is viewed in context. Mr. Kleppinger initially requested the ordinances following the regular, open meeting of the City Council during which members read aloud the content of each ordinance being introduced for a first reading. The City has not refuted that he was verbally denied access following that meeting nor has the City denied that hard copies of the records to which Mr. Kleppinger first requested access verbally on August 7, and then in writing on August 8, existed. Rather than ask for clarification regarding the specific records to which Mr. Kleppinger sought access upon receipt of his request, if any was needed, or elaborate upon the rationale for its position that no responsive documents existed, the City ambiguously denied access, noting that it did not have to honor a "standing request" without further explanation. The agency's position remained unclear until the Attorney General requested additional information.
Mr. Kleppinger asked for " access to and copies of" the records in dispute. (Emphasis added.) The Interior Journal is located in the City of Stanford, and the records are presumably located in the City of Hustonville. Both cities are located in Lincoln County, Kentucky. Consequently, the City was authorized to require Mr. Kleppinger to inspect existing records that were potentially responsive to his request prior to providing him with copies whether his request otherwise satisfied the higher standard of specificity found at KRS 61.872(3) or not (see note 3); however, the agency was not permitted to deny access to existing nonexempt records based on a "narrowing legalistic interpretation" of his request. Under these circumstances, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours." 99-ORD-63, p. 4. See 08-ORD-047; 12-ORD-049.
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:
Benjamin R. KleppingerVirginia Carol HillRita Clem
Footnotes
Footnotes
1 The City's ambiguous initial response did not comply with KRS 61.880(1). "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. With regard to how specific a public agency must be in denying the existence of records being sought, 09-ORD-019, a copy of which is attached hereto and incorporated by reference, is controlling. The Attorney General has consistently recognized that "it is incumbent on the agency to so state in clear and direct terms" and that "a written response that does not clearly so state is deficient." 02-ORD-144, p. 3 (citation omitted). See 11-ORD-081; 11-ORD-111. Inasmuch as the City did not state "in clear and direct terms" that no responsive ordinances existed until Mr. Kleppinger initiated this appeal, or clarify its position that "proposed" ordinances were not responsive based upon the agency's interpretation of his request, its response was also procedurally deficient.
2 With regard to what is required of a public agency to discharge its duty under the Open Records Act when denying a request based on the nonexistence of the records in dispute, 12-ORD-110 (following Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005)), a copy of which is attached hereto and incorporated by reference, is controlling.
3 The record is unclear on this point. Mr. Kleppinger advised that "Mayor Marc Spivey read aloud each of the ordinances." However, the City later indicated that "Proposed Ordinances were introduced by individual councilmembers who asked for the first reading . . . ." The critical fact is that Mr. Kleppinger requested the ordinances read aloud on August 7.
4 Pursuant to KRS 61.872(3):
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) 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. . . .
As the Attorney General has often recognized, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail." 03-ORD-067, p. 4. Thus, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. See 12-ORD-049.
5 Ms. Hill included a copy of the agenda for the September 4 regular meeting. Although the agenda for the September 4 meeting separately lists each "Proposed Ordinance," this belated characterization does not alter the analysis.
6 Pursuant to 40 KAR 1:030, Section 6, the instant appeal is moot as to Proposed Ordinances ultimately provided. Inasmuch as the City has maintained its position with regard to Proposed Ordinances # 57 and # 58, this office must address the question presented as to said Ordinances.
7 KRS 61.870(2).
8 KRS 61.871.
9 KRS 61.872(1).