Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Taylorsville-Spencer County Fire Protection District cannot be said to have violated the Open Records Act in the disposition of Spencer County Clerk Lynn Hesselbrock's request for "any written instrument that exists between [Chief Nathan Nation] and any member of [Ms. Hesselbrock's] staff . . . ." 1 Kentucky's courts have determined that a records request satisfies KRS 61.872(2) if it is "adequate for a reasonable person to ascertain its nature and scope." 2 The courts rejected "any sort of particularity requirement" when the requester asserts the right to inspect public records, 3 prompting this office to reevaluate its position on the adequacy of "blanket requests." Nevertheless, we believe it was, in this case, incumbent on the county clerk to identify the members of her staff. Without this information, her request was not "adequate for a reasonable person to ascertain its nature and scope."
In denying Ms. Hesselbrock's request as an improperly framed "blanket request for information on a particular subject," Chief Nation "left the door ajar" for a subsequent request by suggesting that she "be specific which employees you are referring to." 10-ORD-193, p. 1. Although Ms. Hesselbrock's request encompassed "any member" of her staff, and the six members of her staff are identified on her website, 4 our analysis of the adequacy of her description is confined to the four corners of the request. Without the staff members' names, Chief Nation had no starting point from which to commence his search. He promptly asked Ms. Hesselbrock to "be specific which employees you are referring to." She elected, instead, to initiate an open records appeal, asserting that she has "only five staff members and the request was specific in nature that the information I requested applied to only those five staff members. " 5
In 10-ORD-189, a copy of which is enclosed, this office rejected the agency's argument that a request for all city employee payroll records for the month of July 2010 was inadequate under the Chestnut standard. Shortly thereafter, we determined that a request to inspect all agency "ABC enforcement actions in the 900 block of Winchester Road, Lexington, from March 1, 2010, to July 1, 2010" was "adequate for a reasonable person to ascertain its nature and scope." 10-ORD-193 citing Chestnut at 661. In both cases, the Attorney General concluded that the requester submitted "a brief and simple request for the government to make full disclosure or openly assert its reason for nondisclosure." Chestnut at 662, citing Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R. 1 1978) reversed on other grounds on appeal 602 F.2d 1010 (1st Cir. 1979). Production of payroll records for a period of one month, in the first instance, and production of ABC enforcement actions for a particular location, in the second instance, fully discharged the agencies' obligation under the Open Records Act.
Ms. Hesselbrock's request was not limited by time or topic; nor, as noted, did it identify her employees. Under these circumstances, Chief Nation had no starting point for ascertaining the nature and scope of Ms. Hesselbrock's request. Chief Nation left the door ajar for a request identifying the clerk's employees. We encourage Ms. Hesselbrock to submit a request that identifies her employees by name, providing additional parameters, if any, that might facilitate the fire district's search.
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:
Lynn HesselbrockNathan B. NationRuth Hollan
Footnotes
Footnotes
1 Chief Nation unequivocally denied Ms. Hesselbrock's request for "any written document between [Chief Nation] and Mr. Glen Goebel in regards to [her] letter to him dated October 23, 2012 . . .," explaining that "the district does not have the records . . . ."
2 Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008).
3 Id. The Court contrasted a request to inspect public records under KRS 61.872(2), requiring a "description," with a request to access public records by receipt of copies through the mail, requiring a precise description. KRS 61.872(3)(b). With reference to the former, the Court observed:
Chestnut described the records he wanted to see -- the content of his own inmate file . . . . 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."
Id. citing State Board of Equalization v. Superior Court, 10 Cal. App. 4th 1177, 13 Cal. Rptr. 2d 342, 347 n.9 (1992) ("It would be impossible for [the requester] to be so specific unless it possessed a document index, which the Board refuses to provide. By this ploy, the Board would place [the requester] in a classic, 'Catch-22' situation").
4 http://www.spencercountyclerk.com/staff/
5 We cannot explain the discrepancy between Ms. Hesselbrock's website, identifying six employees, and her statement that she has only five employees.