Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in these consolidated appeals is whether the City of Taylorsville violated the Open Records Act in the disposition of Lawrence Trageser's two requests for records relating to the city's expenses in connection with open records requests. For the reasons stated below, we find that the city violated the Act by refusing to fulfill the requests.
Mr. Trageser's first request, dated April 17, 2014, stated as follows:
Comes the Petitioner seeking any and all records reflecting the alleged $ 20,000.000 plus dollars spent or costs incurred by the City of Taylorsville, while producing, administering, providing or litigating these open records requests.
Petitioner asserts that City of Taylorsville Commissioner Ellen Redman has represented in the last regularly scheduled meeting of the City of Taylorsville dated April 1, 2014, that $ 20,000 plus dollars have been spent on dealing with open records requests. Petitioner has no way to interpret or provide the specific open record requests sited [ sic ], nor the time frame, nor any other relevant fact about the open record requests or the alleged costs incurred to administer them.
Petitioner relies solely on the statement of fact, asserted and represented by an elected official at a public meeting, with regards to the existence of any such documents or truth to the statements.
On April 22, 2014, City Attorney John D. Dale, Jr., issued a denial of the request on the following grounds:
that a public agency does not have . . . to provide information; to create records; to compile or to explain records; to honor a request which is overly broad. Nor which places an undue burden on the agency in producing the records or there is reason to believe that repeated request[s] are intended to disrupt essential functions of the public agency, KRS 61.872(6); over the last couple of years you have repeatedly inundated the City with numerous and continuing open records requests and meetings complaints, often one on top of another, as in this case, where you filed this request and at the same time filed an open meetings complaint over an issues [ sic ] which had already been resolved in part against you, by the Attorney General . . ..
Nor does the statute require a public agency to compile or to assimilate records to or in support of statements made by an official of that agency.
On April 24, 2014, Mr. Trageser submitted a modified version of his previous request, as follows:
Comes the Petitioner seeking any and all records from January 1, 2013 to present date, April 24, 2014 reflecting the administrative costs incurred or expended by the City of Taylorsville for responding to, the processing of, or attorney fees paid out, relating to any and all open records request [ sic ] during this time period.
Mr. Dale responded on April 30, 2014, with essentially the same denial issued in response to the previous request.
Mr. Trageser appealed both denials on November 18, 2015. In a response to both appeals dated December 11, 2015, Mr. Dale reiterated the bases already given for the denials and further argued that Mr. Trageser's appeal should be rejected as not filed within a reasonable time on the basis of "the doctrine of Waiver and/or Laches. "
We do not find the equitable doctrines of waiver and laches to be applicable to statutory appeals governed by KRS 61.880. The Open Records Act gives time limitations for various actions to be taken, but imposes no deadline on filing an appeal to the Attorney General. The Supreme Court of Kentucky has stated:
We do not believe it was a legislative oversight in not providing a deadline for requesting review by the Attorney General or initially appealing to the circuit court. An open records request is a pro se request by "any person," the basic policy of the Open Records Law being that "free and open examination of public records is in the public interest[.]" We opine that the omission of a deadline for a "complaining" party to forward the request and the denial to the Attorney General is intentional (although a reviewing court could require that the request be filed within a reasonable time under the circumstances of a case).
Dept. of Revenue, Finance and Administration Cabinet v. Wyrick, 323 S.W.3d 710, 712-13 (Ky. 2010) (footnotes omitted). Mr. Dale urges that the parenthetical at the end of the quoted text should be construed to allow the city to assert waiver or laches here on the basis of unreasonable delay by Mr. Trageser. On the contrary, the parenthetical refers only to the discretionary powers of "a reviewing court" in a judicial action filed under KRS 61.882, as opposed to a statutory review by the Attorney General pursuant to KRS 61.880. We find that neither the Open Records Act nor the Wyrick case makes any allowance for a claim of undue delay in this administrative forum. 14-ORD-040, n.2.
We turn, therefore, to the various substantive arguments made by the City of Taylorsville in denying Mr. Trageser's requests, none of which invokes an exception to open records under KRS 61.878(1). Since Mr. Trageser appears to have asked only for existing records, we do not find that either of these requests was a request for information, a request to create or compile a record, or a request to explain a record. With regard to the argument that the requests are "overly broad, " the city has neither cited legal authority nor explained why it cannot respond to a request for records substantiating its costs and expenditures attributable to open records requests. We find the requests comprehensible and presume the city to have knowledge of which records document those expenditures.
Although not citing the statute, the city appears to invoke the substance of KRS 61.872(6), which provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
The recitation that Mr. Trageser has made many open records requests to the city over two years does not by itself constitute clear and convincing evidence of an unreasonable burden or intent to disrupt essential functions under KRS 61.872(6). "The public agency must build the case" for invoking this subsection, 15-ORD-015, and in this instance it has provided no details upon which to do so.
Lastly, the city argues that the Open Records Act does not "require a public agency to compile or to assimilate records to or in support of statements made by an official of that agency." The Act does, however, require a public agency to assemble relevant records in response to a concrete request. The agency "is required to make a reasonable search of persons who are likely to have responsive documents." 14-ORD-181. The fact that a statement by a city official may have motivated Mr. Trageser's request does not impact our analysis. In summary, we find that the City of Taylorsville violated the Open Records Act by its refusal to provide access to public 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.