TO BE PUBLISHED
August 25, 1994
IN RE: Herbert L. Blevins/City of Melbourne
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Herbert L. Blevins in connection with his attempts to secure copies of documents from the city of Melbourne.
In a letter dated June 14, 1994, addressed to the city of Melbourne, Mr. Blevins requested copies of or access to various specifically described documents and photographs in the possession of the city.
In a letter addressed to the Attorney General, dated July 19, 1994, and received July 25, 1994, which we have construed to be the letter of appeal of Mr. Blevins, he stated that he had not received any response to his letter to the city. He referred to the statute which requires a response from the public agency within three days.
On July 25, 1994, this office sent a notice to the city that an appeal had been filed against it under the Open Records Act.
Apparently in response to that notice this office received a letter from Thomas A. Wietholter, Esq., attorney for the city of Melbourne, dated July 27, 1994, setting forth the city's position relative to the request of Mr. Blevins. There is no indication that a copy of that letter was sent to Mr. Blevins.
Mr. Wietholter stated in part that Mr. Blevins had been told at a council meeting to fill out the city's request form for copies of records which Mr. Wietholter maintains is authorized by KRS 61.872(2) and which he said had not been filled out by Mr. Blevins. Mr. Wietholter also referred to a civil action involving Mr. Blevins and the city. Finally, he
mentioned that the city has no full-time employees and that there is a city ordinance dealing with a time for the review of public records.
In connection with the duties of a public agency relative to the receipt of a request for access to public records, KRS 61.880(1) states, in part, as follows:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
Thus, any public agency, which obviously includes the city of Melbourne, is required by law to notify the requesting party in writing within three business days of the receipt of the request to inspect public records of its decision relative to that request.
The city has violated KRS 61.880(1) by its failure to respond in writing within the required time frame.
KRS 61.872(2), cited by the city in support of its actions, provides as follows relative to the public's right to inspect documents:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
In OAG 76-588, copy enclosed, this office considered KRS 61.872(2) and said, in part, at page two:
Public agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted. Records which are easily described and readily available, such as tax assessment records, should not be temporarily withheld from inspection by red tape under the pretense of complying with the open records law.
The city violated the Open Records Law when it ignored the application or request to inspect public records because it was not submitted on a particular form devised by the public agency.
The request or application to inspect public records, on the basis of the copy sent to this office, meets all the requirements of KRS 61.872(2) except that it apparently was not signed. If the original of the request or application which was submitted to the city was not signed, the requesting party has not complied with the requirements of KRS 61.872(2) pertaining to a written request or application to inspect public records.
The city was under a legal obligation to respond to the request within the statutorily mandated time frame even if the response was merely to advise the requestor that the request did not meet the statutory requirements. Every request for documents submitted to a public agency should be responded to within the required time frame no matter what decision is made or what reason is advanced in response to that request.
Either Herbert L. Blevins or the city of Melbourne or both of them may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within thirty days from the date of this decision. The Attorney General shall be notified of any actions filed in the circuit court pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.
THOMAS R. EMERSON
ASSISTANT ATTORNEY GENERAL
Copies of this decision
have been mailed to:
Herbert L. Blevins
P. O. Box 126
Melbourne, Kentucky 41059
Thomas A. Wietholter, Esq.
Campbell Towers, Suite 603-605
Fourth and York Streets
Newport, Kentucky 41071