Opinion
Opinion By: Jack Conway, Attorney General; Robyn Bender, Assistant Deputy Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government violated the Open Records Act in its responses to a series of records requests submitted by Douglas A. Wain to Mayor Jim Gray over a period of time extending from September 24, 2012, to September 6, 2013. We find that LFUCG's responses were not violative of the Act.
On September 24, 2012, Mr. Wain submitted a letter to Mayor Gray which "Reference[d]: Investigation and Information Request." Although he prefaced his letter with a request for "an investigation into Partners for Youth and Its Executive Director Laura Hatfield," the balance of Mr. Wain's eight page letter contained sixty-nine requests for "information and documentation" relating to Partners for Youth, Ms. Hatfield, the grant program administered by Grassroots Grant Review Committee, decisions concerning inclusion or exclusion of the organization Mr. Wain represents from programs sponsored by Partners for Youth and/or LFUCG, and communications between named individuals concerning his organization. LFUCG responded to this letter on October 2, 2012, requesting that Mr. Wain clarify whether he intended to make a request pursuant to the Open Records Act, and, if so, that he "submit a signed request detailing, with reasonable specificity, the records" he wished to review. Mr. Wain did not respond to LFUCG's request for clarification.
On September 6, 2013, Mr. Wain submitted a letter to Mayor Gray, in which he invoked the Open Records Act and again requested access to "all information requested in our September 24, 2012, letter," "all information and documentation [Mayor Gray's] office and departments have in regard to [the] Prevent Youth Violence Program," and "all information on the actions [Mayor Gray] took on the recommendations of the Commission on Youth Development and Public Safety." The following day he submitted a similar letter to the Urban County Council, again referencing the Open Records Act, and restating his request for "documentation [the] council or its committees have in regard to [the] Prevent Youth Violence Conference" and "information on the actions [the council] took on the recommendations of the Commission on Youth Development and Public Safety." Shortly thereafter 1 Mr. Wain initiated this appeal raising a number of non-open records questions, 2 including one open meetings question, 3 and asking whether "the Kentucky Open Records Act has been violated by the City of Lexington or Lexington Mayor Gray and his office in regard to [his] September 24, 2013, [sic] letter."
By letter dated September 12, 2013, LFUCG responded to Mr. Wain's September 6 request 4 to Mayor Gray which, as noted, incorporated by reference his September 24, 2012, request. Citing three open records decisions issued by this office, LFUCG reminded Mr. Wain, generally, that agencies are not obligated to compile a list, create a record, or "gather and supply information independent of that which is set forth in public records" to satisfy an open records request. LFUCG indicated that compilation of responsive records from its "various divisions" would require an additional five to seven days. On September 19, 2013, LFUCG notified Mr. Wain that documentation relating to the Prevent Youth Violence Conference and information on actions taken as a result of recommendations made by the Commission on Youth Development and Public Safety had been compiled and was available for review. With reference to Mr. Wain's September 24, 2012, request, incorporated by reference into the September 6, 2013, request, LFUCG advised:
We requested clarification from you by letter dated October 2, 2012 as to whether you were making a request under the Kentucky Open Records Act or simply requesting an investigation. As you provided no further correspondence, we construed your prior request as a request for an investigation, rather than a request to inspect records. As you have now renewed your request under the Open Records Act, we are processing that request. Please be advised that your prior letter contains sixty-nine (69) separate identifiable requests, and it will take some time to compile the information requested. We estimate this information will be available in an additional five (5) business days.
On September 30, 2013, LFUCG notified Mr. Wain that all records responsive to his September 24, 2012, request had been identified and were available for review. LFUCG explained that information of a personal nature, such as home addresses, home email addresses, and personal phone numbers had been redacted pursuant to KRS 61.878(1)(a).
In a letter to his office dated September 19, prepared before it issued its final response on September 30, LFUCG amplified on its position. Focusing on Mr. Wain's September 24, 2012, letter, LFUCG advised:
After receiving the letter, the Office of the Mayor referred the matter to legal counsel for its evaluation. In reviewing the letter, counsel believed the letter was requesting an investigation into various aspects of the Partners for Youth Program, but did not appear to make an explicit request for records (the letter did not reference the Open Records Act, and as indicated above, appeared to make a request for an investigation). Out of an abundance of caution, counsel sought clarification as to whether Mr. Wain intended to make a request under the Open Records Act or whether he was simply requesting an investigation. If Mr. Wain's intention was the former, counsel requested resubmission of the request with greater specificity in what records he sought or at least some indication that his intent was review of public records rather than a request for investigation. If it was the latter, Mr. Wain was informed that no further action was required. Neither counsel nor any LFUCG representative received a response from Mr. Wain until submission of a subsequent letter and receipt of this appeal, both received over eleven (11) months after Mr. Wain's initial correspondence.
Upon receipt of his renewed request in September 2013, LFUCG explained, it undertook a search for responsive records. Nevertheless, LFUCG emphasized Mr. Wain's earlier request "contains approximately sixty-nine subparts, of which some will have responsive documents, others will not, and still others are clearly beyond the scope of the Open Records Act" as requests for information.
Following receipt of LFUCG's September 30 response to his request, Mr. Wain conducted a review of the responsive records compiled by the agency, and, on October 7, 2013 submitted written objections. It was his belief that " most of the LFUCG records requested in the September 24, 2012, letter . . . were not provided," and that "seventy-five percent of the documents that were provided . . . did not relate to the September 24, 2012, letter [but to the] new requests made in the September 6, 2013, letter to Lexington Mayor Gray." (Emphasis in original.) Mr. Wain attached a copy of his September 24, 2012, letter indicating in red, after each of the sixty-nine subparts, "those records and requests not yet provided."
Having considered the record on appeal, we are unwilling to assign error to LFUCG for failing to treat Mr. Wain's September 24, 2012, letter as an open records request and to properly respond within three business days. We do, however, suggest that, in the future, the agency should identify each subpart for which no responsive records were located, and advise a requester which subparts were "clearly beyond the scope of the Open Records Act" and the reasons why.
KRS 61.872(2) establishes the minimum requirements for an open records request, authorizing the official custodian to "require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." That provision does not impose a duty on the requester to expressly reference the Open Records Act or a specific statute. The courts and this office have confirmed the view that "the failure to issue a timely response to an open records request [is] not excused by the requester's failure to identify the request as a request made under the Open Records Act. " See, e.g., 99-ORD-148; 01-ORD-168; 06-ORD-197; 12-ORD-114. In the latter open records decision, this office determined that the agency's error in failing to respond to a records request that was not identified as such was mitigated by the fact that the records request was collateral to the requester's primary purpose, i.e., a critique of the agency's disposition of the requester's complaint about an employee. The request was "'buried, ' as it were, in the text of his critique." 12-ORD-114, p. 3.
Mr. Wain's requests for records figured prominently in seven pages of his eight page letter to Mayor Gray. Although they were not "buried" in his request for an investigation, their content and the manner in which they are framed, created ambiguity as to Mr. Wain's intended purpose. Such ambiguity should normally be resolved in favor of treating the records request as an open records request. However, in Mr. Wain's case, the broad sweep of his request, and the corresponding demands on the agency to fulfill it, prompted LFUCG to instead seek clarification as to his intentions. LFUCG promptly responded to his letter by asking him whether he was "making a request pursuant to the Kentucky Open Records Act, KRS 61.870." Mr. Wain did not respond to this letter. Under these circumstances, we cannot assign error to LFUCG for failing to treat Mr. Wain's September 24, 2012, letter as an open records request.
Nearly one year later, Mr. Wain made his intentions clear. In his September 6, 2013, letter to Mayor Gray, Mr. Wain cited the Open Records Act as the basis for his renewed request for the records identified in his September 2012 letter and his request for additional "information and documentation" relating to the Prevent Youth Violence Program and the actions taken by Mayor Gray on the recommendations of the Commission on Youth Development and Public Safety. Again, LFUCG issued a timely written response to his letter, advising him initially that because he requested information from various divisions within LFUCG, an additional five to seven business days would be required to fulfill his requests. Seven days later, LFUCG notified him that records responsive to his September 2013 requests had been located and were available for inspection, but indicated that an additional five days would be required to fulfill his renewed September 2012 request and each of its sixty-nine subparts. On September 30, LFUCG informed Mr. Wain that all responsive records, including those responsive to his September 2012 letter, had been identified and were available for review.
Upon inspection, Mr. Wain noted the omission of records responsive to "most" of his 2012 request, submitting a copy of that request to LFUCG in which he highlighted in red the requests for which no records were produced and no explanation was given. Public agencies should produce records in a manner that facilitates ease of understanding of, and meaningful access to, the records. Thus, in 02-ORD-150 this office determined that "the commingling of requests and the volume of records produced precluded the requester from conducting her own meaningful review," and suggested that the agency "identify and cull out the discrete set of records" responsive to each request. Although LFUCG located and released all records responsive to Mr. Wain's 2012 and 2013 requests, we suggest that in the future, the agency correlate those records to the requests to which they were responsive or at least identify the requests for which no responsive documents existed or which were beyond the scope of the act and state so clearly.
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:
Douglas WainJacob Walbourn
Footnotes
Footnotes
1 Mr. Wain's letter is dated January 11, 2013. We assume that this is a typographical error since the attached materials include letters dated September 6 and 7, 2013, and the letter reached our office on or about September 13, 2013.
2 Pursuant to KRS 61.880(2), the Attorney General cannot opine on non-open records questions in the context of an open records appeal.
3 Mr. Wain questions the adequacy of meeting notices issued by the Commission on Youth Development and Public Safety but gives no indication that he submitted a written complaint to the Commission's presiding officer, a prerequisite for appealing the Commission's actions under the Open Meetings Act per KRS 61.846(1).
4 It is unclear whether his letter was intended to serve as the response to the September 6 request to Mayor Gray and the September 7 request to the Urban County Council. Given the confusion as to the date of Mr. Wain's appeal, it is possible that the latter request was still under review on the date Mr. Wain submitted his appeal to this office. We must, therefore, decline to consider issues relating to his September 7, 2013, open records request to the Urban County Council.