Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Summary : City of West Point violated the Open Records Act by failing to respond in writing to a request and withholding records without statutory justification.
Open Records Decision
The question presented in this appeal is whether the City of West Point violated the Open Records Act in the disposition of Jerry Noel's August 18, 2017, request for copies of various city records. For the reasons that follow, we find that the city both procedurally and substantively violated the Act.
Mr. Noel's request, which was received by the City of West Point on August 21, 2017, consisted of four items:
The first open records request I am asking for is the request form I filled out the first time pertaining to the licenses and certifications of your personnel on or around July 13, 2017.
The second request is to have a copy of the licenses and certifications of all personnel or public work persons working in the City of West Point or contractors that worked with water and sewer in the City of West Point from January 1, 2017 through August 1, 2017.
The third request is to get a copy of the service agreement you have with Harden [sic] County water District one or two.
The fourth requests [sic] I would like to have a copy of all canceled checks from January 1, 2017 through July 14, 2017.
(Emphasis in original.) Having received no response by August 28, 2017, Mr. Noel followed up with a phone call to the Mayor of West Point, who "said, the reason I did not get the open records is because they were in or doing an audit, but he said that they sent me an e-mail which in return I told him I did not receive it and would like a copy." 1 Mr. Noel initiated this appeal on August 29, 2017.
KRS 61.880(1) requires a public agency to issue a written disposition of a request for public records within three days, excluding Saturdays, Sundays, and legal holidays. Furthermore, any response denying access to public records, in whole or in part, must include a statement of the applicable exception to the Open Records Act and a brief explanation of how it applies to the records withheld. Inasmuch as these procedural requirements were not met, the City of West Point violated the Act.
In a September 5, 2017, response to this appeal, City Attorney Joshua Cooper states as follows:
In speaking with Mayor William Ash ? I understand that the City of West Point attempted to respond to Mr. Noel's request. City of West Point is in fact involved in a financial audit at this time.
After reviewing this with my client, enclosed please find the records requested in the first, second, and third requests. However, the fourth request for all canceled checks between January 2017 and July 2017 could potentially result in hundreds, if not thousands, of documents, and could potentially impact on the privacy of numerous additional parties. ?
In whole, the blanket request seems unreasonable and not tailored to obtain relevant information. If Mr. Noel would provide a more specific list of the records requested, I believe the City of West Point would be happy to comply in accordance with Kentucky Revised Statutes.
We note that the records attached to Mr. Cooper's letter include documents responsive to items 2 and 3 of Mr. Noel's request, but nothing responsive to Item 1 (a copy of his previous request). Accordingly, we deem the complete lack of response to the first item of the request to be a violation of the Open Records Act.
As for item 4, the city still has failed to articulate any statutory provision on which it relies to withhold the seven months of cancelled checks requested by Mr. Noel. There is no statute that would make these records per se confidential; nor has the city articulated any "privacy" interest that would be violated by disclosing to what persons and entities city funds have been paid. If the city is attempting to argue, pursuant to KRS 61.872(6), that producing the checks imposes "an unreasonable burden," then it has failed to sustain its refusal "by clear and convincing evidence" as required by that provision. Lastly, there is no merit to the city's contention that Mr. Noel's request is "not tailored to obtain relevant information, " since "[t]he purpose for the inspection of public records and how the information obtained from public records will be used is not material under the Open Records Law." 08-ORD-080, n.2 (quoting OAG 79-275). Therefore, we find that the City of West Point violated the Open Records Act by failing to provide access to public records without legal justification.
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 There is no indication in the record that Mr. Noel ever received a copy of such an e-mail, nor has the city provided any evidence that it was ever sent.