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AG: records that can be viewed can be copied
Hereıs another odds-and-ends column for you. One of the topics weıre looking at is: Can an agency deny your request for a copy of a record if it has
already allowed you to inspect that record? The other topic is: how to avoid potential pitfalls when you draft an open records request.
You can look but you can't have.
The statute is pretty clear. KRS 61.874 states: ³Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878.²
Seems pretty straight forward, doesnıt it? If the law permits you to inspect it, the law permits you to copy it. But every once in a while a glitch occurs. One representative of a public agency will allow you to review a file and then, when you ask for a copy, that person will be overruled by her superior, who says it's exempt.
That happened not long ago to The State Journal. There was some controversy on the Kentucky State University campus about the decision to grant tenure to two professors. Reporters for The State Journal had asked to see the personnel files of the two professors. They were given the files and told to mark documents they wanted copied. As they reviewed the files, they realized that they wanted copies of the vast majority of the documents, so they marked the ones they did not want (primarily duplicates) and returned it to the KSU official who was working with them.
When they went to retrieve the copies a few days later, they were given files much thinner than the ones they reviewed. Missing from the copied files were a reprimand for one professor and student and faculty evaluations of both professors, among other things. The reporters distinctly remembered seeing the reprimand and evaluations when they reviewed the files.
Accompanying the incomplete copies of the files was a letter from an attorney for KSU. In that letter the attorney listed six categories of documents, including faculty and student evaluations of each of the professors, which were contained in the files but would not be turned over to The State Journal. The documents in these categories, explained the lawyer, are exempt from disclosure under the Open Records Act.
The State Journal appealed to the Attorney General. The AG answered unequivocally that ³KSU violated [the Open Records Act] by refusing to supply [The State Journal reporter] with copies of the records she had already been permitted to inspect.² 01-ORD-113, p. 3.
The AG based that decision on former opinions interpreting KRS 61.874 (the language quoted above), saying ³It is abundantly clear from the language of the statute that one having inspected records is entitled to copy them upon payment of a reasonable fee.² [citing 94-ORD-47, p. 3].
There have been rare occasions when the AG has determined it is alright for an agency to deny a requester copies of records he or she has already inspected. But those circumstances are limited to times when public records have been inadvertently released for inspection by noncustodial persons with access to the records. In the case of The State Journal, KSU's records custodian had affirmatively acted to permit the reporters access to the files requested. It was only after the reporters reviewed the files that KSU claimed some were exempt. Too late. The AG said that KSU may not deny The State Journal copies, even if the records were exempt.
Making an open records request
From time to time, reporters call us about a request which has been denied for being overly broad and burdensome or too vague. That meant time was wasted while the reporter rewrote and resubmitted the request. So how do you avoid delays like this? There are several things to keep in mind.
1. You must request records not information. So, if your local school board is winding down its search for a new superintendent and you want to know who the three finalists are, don't request "the names of the three finalists." That's a request for information. Instead, request some public record which would contain that information. For example, ³Please provide any list containing the names of the three finalists,² or ³Please provide the applications and/or resumes of the three finalists.²
This may seem like a semantics game, but itıs not. Section 61.872 refers repeatedly to the right to inspect public records, for example, ³all public records shall be open for inspection ... .² KRS 61.872(1). And the AG has said an agency need not create a record which doesn't already exist just to give you information.
2. Identify the official custodian of records for the agency. If youıre making a request of an agency new to you, take the time to make a couple of phone calls. Find out who is the official custodian of records so that you can direct your request to that person, as the Act requires. Some agencies will forward an errant request to the official custodian, but some won't.
3. Make your request as specific as possible. The Attorney General has held that blanket requests for information on a particular subject without specifying certain documents need not be honored. For that reason, the AG upheld the Kentucky Transportation Cabinet's denial of a request to inspect ³all records in the Highway Right-of-Way Division of the Department of Transportation District 5 ... .² 83-OAG-386.
On the other hand, there will be times when you donıt know whether a specific record exists, so it is impossible to explicitly describe it. In that case, you need to describe around it. Ask for ³any and all documents relating to consulting services provided Bridge Building Consultants, Inc.; the decision to retain the services of Bridge Building Consultants, Inc.; any requests for
proposals issued for this consulting project and any bids received from Bridge Building Consultants, Inc. or other bidders." So, if you have reliable information that another company made a quality bid that was significantly lower than the bid of Bridge Building Consultants, Inc. and you want to explore the reason for that, the city's response to this open records request should
get you started.
4. To the extent you can, when requesting voluminous records, narrow the time period down. That was another of the Attorney Generalıs objections to the 1983 request for all records of the Department of Transportation Right-of-Way Division. The request had no beginning and no end.
There are times when you need to ask for a lot of records spanning a period of time. But when you are searching for a needle in a haystack, it behooves you to whittle down the size of the haystack as much as you can before you make your request. For example, a usually reliable source has told you something that, if confirmed, would be a statewide scoop. It involves some outlandish expenditures by the wife of a former Kentucky governor. Your source, however, didn't tell you which governor. In your haste to submit your open records request, you could simply ask for records showing expenditures on behalf of the Kentucky First Lady for the last 30 years. It is probably within your power, though, to narrow the field before you make your request. That will likely insure a speedier response.
This is important since KRS 61.872(6) allows an agency to refuse a request which places an unreasonable burden in producing public records. (If challenged on this refusal, however, the agency must be prepared to sustain it by clear and convincing evidence.) Subsection five allows agency to exceed the statutory three day time limit for responding to open records requests when a record is in storage or not otherwise available.
A good example of the need for reasonable specificity in your requests is 91-OAG-58. In that case, a Mr. Christensen requested "all notes, letters, memos, and studies which might contain information about the exchange of information between the Office of Economic Development (OED) ...² and several other public agencies concerning UPS and the airport expansion project. The AG found his request to be overly broad and ambiguous, because the UPS and airport expansion projects were multifaceted, multiphase projects which were ongoing. And the OED acted as a facilitator in coordinating several of the subprojects, as well. The requested documents might have been contained in the files of as many as 31 employees of the OED as well as files in the central file room, the general files of three OED division offices and the files of the Louisville Urban Renewal Commission.
The Attorney General had no trouble upholding the agencyıs denial of his request.
Given the vast number of files which might fall within the parameters of Mr. Christensenıs request, their broad dispersal, and the difficulties which would attend any attempt to separate exempt from nonexempt materials, we conclude that your reliance on KRS 61.872(5) was proper, and that you have established by clear and convincing evidence that the request places an unreasonable burden on your agency.91-OAG-58 p. 2.
5. If time is of the essence and you suspect the agency will push its time limits, consider hand delivering your request. That way you can hand write the time of day the request was delivered. That will get the three-business-day clock ticking with some precision.
6. Of course, you should always write ³open records request² in all caps at the top of your letter and on the outside of your envelope, so you alert the recipient that the letter is time sensitive.
7. Consider a closing paragraph in your letter which reminds the agency of its three-business-day time limit to respond, and provide your telephone number so they can reach you with questions they might have in the meantime.
8. You may deliver your request in person, via the mail or via facsimile.
9. You may be asked, and should expect to pay, a reasonable fee for making copies of the records produced. The Attorney General has rejected charges of $1 per page. A public agency is required to calculate a reasonable fee based on its actual cost, excluding the cost of staff. KRS 61.874(2). That could mean the actual cost of the copy, a minimal cost these days.
This changes if you ask the public agency to produce a record in a nonstandardized format or to tailor the format to meet your particular needs. The public agency may but does not have to provide the requested format. If it does it may recover staff costs as well as actual copy charges.
The Act also contains a provision for public records provided to persons who intend to use them for commercial purposes. A public agency may establish a reasonable fee for those based upon either the agencyıs cost to copy the record including staff time or the cost to the agency of the creation, purchase or other acquisition of the public records.
Public records obtained for use by newspapers are not considered records intended for commercial purposes, so you should not have to be concerned about these particular requirements.
If you have other questions about crafting your open records request, don't hesitate to contact your Hotline lawyers.
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