March 11, 1996

In re: Kaye Boedigheimer/City of Sebree


This matter comes to the Attorney General on appeal from the City of Sebree's response to Ms. Kaye Boedigheimer's open records request to inspect certain of the City's records.

By letter dated October 6, 1995, Ms. Boedigheimer requested a copy of the following City records:

I request a copy of the current insurance policy (Title page only) and the name of the insurance agency carrying insurance on all city equipment. This includes on and off road equipment.

Also request a list of all city employees, their pay scales and normal hours worked each week.

By letter dated October 10, 1995, Ms. Mary Thomas, City Clerk, City of Sebree, responded to Ms. Boedigheimer's request, stating:

This letter is in response to your personal visit to the Sebree City Building, your telephone call to attorney for the City of Sebree, Tommy Joe Fridy and your letter to the City of Sebree all of October 6, 1995. You told me on your personal visit to the City Building and you told Tommy Joe Fridy in a separate telephone conversation the same day, that the Kentucky Attorney General told you that you could inspect City of Sebree records without first making a written request specifying the records to be inspected. I called the office of the Attorney General on Friday, October 6, 1995 and they called me back Monday, October 9, 1995 and I was informed they have not talked with either you or Jerry Tucker on this issue and that they have not advised you or any other Kentucky resident that you can inspect City of Sebree public records without first making a written request, as there is no such law.

Therefore, as you have been repeatedly told in the past, it is necessary for you to make a written request in order to inspect public City of Sebree records. The City will then respond to you in writing within three business days with a time and date when you can come to the City Building and inspect the requested public records (the following day, if possible). Any public records you want copies of will be copied for you at that time at a cost of 10¢ per 8 1/2 x 11 page.

The repeated request for public records on behalf of you and Jerry Tucker is time consuming, expensive and is placing an unreasonable burden on the City of Sebree. While it appears such repeated request [sic] are intended to disrupt the other essential functions of the City of Sebree and its staff, Sebree is going to honor your request of October 6, 1995 so long as you conduct yourself in a courteous, orderly and professional manner during the inspection. At such time as you should choose to repeat the disorderly and abusive conduct you and Mr. Tucker have exhibited in the past, the inspection will be immediately stopped. Also, no such future conduct will be tolerated.

You may come to the City Building at either 10:00 a.m. Friday, October 13, 1995 or at 1:00 p.m. Monday, October 16, 1995 for the purpose of inspecting the payroll records of the City of Sebree (the second request in your letter of October 6, 1995). City employees will copy for you any information from such records you may request.

The copy or copies of the title page of the insurance policy(s) insuring City equipment and the name of the insurance agency carrying such insurance will be provided to you at that time.

In her letter of appeal, Ms. Boedigheimer states that she appeals her rights under open records law regarding her October 6, 1995 open records request. In that letter, she states, in relevant part:

This appeal is necessary because they [the City] failed to allow me to review the requested records within three working days causing an unreasonable delay. Furthermore they set a specific appointment without coordinating the time with me as to my availability. I don't feel an appointment should be required once they have determined the records can be viewed, I should be able to go in during normal business hours and review documents requested.

The City Office is staffed with one full time person and one to two part time people. Their office hours are from 9:00 A.M. until 4:00 P.M. There is no reason a person should not be able to review documents eligible for viewing during normal business hours. These people hide behind the three working day requirement.

Myself or anyone I have taken with me to their office has never displayed abusive conduct. This is their rational to discourage my review of their records. I always take a witness with me when I enter this office and they can verify that I have never been disorderly or been abusive. Opening your mouth and requesting a document is disorderly and abusive conduct to them.

I do not want to put your office in the middle of my problems with this city. But I think they should be required to conduct themselves as professionals and quit abusing my rights.

Under this appeal, I request that I be allowed to review documents eligible under the open records law at any time during normal business hours, except where it would take time for their office to obtain the files and then these documents should be available for viewing within three working days. At no time should it take longer than three days to present a document for review. Also I request that I be able to review documents during normal office hours once they have determined the documents requested are eligible for viewing. I should not have to make myself available at a specific time and date. This is not reasonable.

Regarding the repeated request for documents this is actually my second request. However my first request in writing was on June 30th, 1995 which they did not respond, I then changed the request to be more specific on July 8, 1995. Finally on July 13, 1995 they mailed a letter to me which I received on July 14, 1995, telling me to arrange a specific time which I did. However, before I was allowed to finish reviewing requested documents, the City Clerk had to go on vacation and I was not allowed to view documents while she was gone. I just gave up on that request. But you can see they are not complying with the three working day requirement.

We are asked to determine whether the City's actions in responding to Ms. Boedigheimer's request was consistent with the Open Records Act. For the reasons which follow, it is the decision of this office that the City's response was inconsistent with provisions of and in violation of the Open Records Act.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records, determine within three working days whether to comply with the request. Within the same three day period, the agency shall notify the requester in writing of its decision whether the request will be granted. If the public agency denies all or any portion of the request, the response must include a statement of the specific exception authorizing the withholding, and a brief explanation of how the exception applies to the record withheld.

KRS 61.872(3)(a) contemplates access to public records by on-site inspection during regular office hours. In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must “immediately so notify” the requester, and designate a place, time, and date for inspection “not to exceed” three working days from receipt of the request, “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.” KRS 61.872(5).

In the instant case, the City timely notified Ms. Boedigheimer within the three day period that she could see the requested records and set forth two separate dates and times in which the records could be inspected. However, under KRS  61.872(3)(a), Ms. Boedigheimer was entitled to immediately inspect the requested records during regular office hours once the City notified her in writing that the records were open for review. Although the City set two specific dates and times in which inspection could be made, it in effect restricted access to public records, in contravention of KRS 61.872(3)(a), by not making the records available at any time during normal office hours. In 93-ORD-48, copy enclosed, this office stated:

KRS 61.872(3)(a) provides that a person may inspect public records during the regular office hours of the public agency. This Office has consistently recognized that any attempt by a public agency to limit the period of time within which a requester may inspect public records places “an unreasonable and illegal restriction” upon the requester's right of access. OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39. If, in fact, [the agency] requires as a precondition to the right of inspection the presence of an employee of his office, and that employee is not available to oversee the review of documents during all regular office hours, [it] has in effect restricted access to public records in contravention of KRS 61.872(3)(a).

For this reason, we conclude the City was in violation of the Open Records Act.

If delay beyond the three day period is necessary, the custodian of the records must provide a detailed explanation of the cause of the delay and designate the earliest possible date, time and place in which the records will be available for inspection. KRS 61.872(5). In circumstances where there are limited employees or irregular office hours, the Open Records Act contemplates that the public agency and the requester mutually agree to a time and place convenient to both for review of the public records. In OAG 92-117, this office advised that “[p]ublic agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.”

In her letter of appeal, Ms. Boedigheimer further stated that previous open records requests made to the City were either not responded to, not timely responded to or were postponed by the City Clerk's vacation. On October 13, 1995, this office notified the City that Ms. Boedigheimer had initiated an open records appeal in this matter. On that date, we sent the City a “Notification of Extension of Time for Issuance of Attorney General's Decision in Open Records Appeal” and enclosed a copy of Ms. Boedigheimer's letter of appeal. The City made no response to Ms. Boedigheimer's letter of appeal or otherwise refuted the facts presented therein. We therefore assume that the letter of appeal sets forth an accurate statement of the facts.

A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. If the records custodian goes on vacation, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records. 94-ORD-99. To the extent the City failed either to respond, or to timely respond to Ms. Boedigheimer's prior requests or postponed inspection of the records due to an employee's vacation, its actions were inconsistent with the Open Records Act. We urge the City to review KRS 61.880(1) to ensure that future responses conform to 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 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.







Distributed to:

Kaye Boedigheimer

P. O. Box 147

Sebree, Kentucky 42455

Mary Thomas

City Clerk

Municipal Building

Sebree, Kentucky 42455