Request By:
Mr. James Caldwell
Michelle Russell, Clerk
Wanda McClure Dry, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Burgin, through its city clerk's office, violated the Open Records Act in the disposition of a January 31, 2017, request from James Caldwell. For the reasons that follow, we find that the city violated the Act, in that it failed to issue a response prior to the filing of this appeal and portions of its eventual response are both procedurally and substantively deficient.
In his January 31 letter, addressed to City Clerk Michelle Russell, Mr. Caldwell requested the following:
1) My complete personnel records, including my complete discipline records, training records, original application and supporting documentation.
2) Any video, audio or written statements in the possession of the City of Burgin or any subordinate agency or employee thereof relating to item 1.
3) A copy of the letter from Kentucky State Police Records received in late 1995 (possibly Oct. or Nov.) [e]xempting the Burgin Police Department from mandatory reporting due to the fact that we were not able to provide computer generated reports and were "Statistically Insignificant". Failing the production of this letter please provide any letters received from that agency finding us in violation for failing to report during my tenure as Chief.
4) A copy of the bid from RCS communications presented to the Mayor on or about 6/18/15 for a mobile data terminal and related equipment.
After receiving no written response from the city clerk, Mr. Caldwell initiated an appeal to this office, which was received on February 22, 2017.
On February 28, 2017, the city clerk responded to the appeal. She states that following an earlier open records request made by him, she "invited Mr. Caldwell to the City Hall and allowed him complete access to his personnel file and allowed him to copy it." This prior request by Mr. Caldwell has not been made part of the record on appeal. 1 Regarding the request which is the subject of this appeal, to which Ms. Russell refers as the "second request," she states as follows:
[W]hen he came in and copied his file in response to his first request this satisfied most of his second request. The training records and original application are available at his convenience.
As for question 2: If any employee has a video or recording of any kind it would be their own personal property and would not be part of the records at city Hall.
As for question 3: Old records in the archives will have to be gone through and this will take some time. Clerk Russell is not aware of such a letter.
As for question 4: Clerk Russell will have to go through the records and look for such a bid.
(Paragraph breaks added.)
We understand the clerk's response as asserting that Mr. Caldwell has already made a copy of his complete personnel file in response to an earlier request, which would cover all of item 1 of the present request except for his training records and original application. Assuming this to be correct, most of item 1 constitutes a request for records already provided in response to a prior request. A public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." 95-ORD-47. Since the city has now made the training records and application available to Mr. Caldwell, we find no substantive violation of the Open Records Act in regard to item 1. The failure to issue a response within three business days, however, was a procedural violation of KRS 61.880(1).
As to item 2, the request for "video, audio, or written statements" relating to Mr. Caldwell's personnel records, we find the city's answer inadequate. Not only does the city fail to address "written statements" directly, but it fails to take into account the full scope of the definition of "public record" in KRS 61.870(2):
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristic, which are prepared, owned, used, in the possession of or retained by a public agency. ?
(Emphasis added.) If any video or audio recordings or written statements responsive to the request exist which are "prepared, owned, used, in the possession of or retained by" the City of Burgin, they are subject to the Open Records Act, regardless of where they are located or whose "personal property" they are considered. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " 04-ORD-123 (quoting unpublished disposition in City of Louisville v. Brian Cullinan , Nos. 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1999)). Thus, records in the possession of city employees could meet the definition of a "public record" for which the city is accountable. We therefore find the city's response to item 2 to be substantively insufficient as well as procedurally untimely.
The city's responses to items 3 and 4 of the request amount to simply a statement that the clerk will have to look for the records and it "will take some time." This is not a sufficient response under the Open Records Act.
KRS 61.880(1) requires a disposition of a request for public records to be made within three days, excluding weekends and legal holidays. If granting access to a record requires more than these three business days, the public agency is to comply with KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
While the City of Burgin has advised Mr. Caldwell that some of its records are "in the archives, " he has not been given a detailed explanation of the cause for delay or a date certain on which the records will be available; therefore, the city has not complied with the statute. "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38 (emphasis in original). The city has not even given an estimated date. This portion of the response therefore constitutes an additional procedural violation of 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 It is possible that the clerk is referring to Mr. Caldwell's request in 17-ORD-034 (although this is by no means certain, since that request on its face did not mention his complete personnel file).