NOT TO BE PUBLISHED
95-ORD-60
April 7, 1995
In re: Albert and Jerry Arlinghaus/Boone County Public Works and Office of Emergency Management
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records by Mr. Albert T. Arlinghaus to the Boone County Public Works Department and the Office of Emergency Management. On December 27, 1994, Mr. Arlinghaus submitted a written request for access to notices or complaints relating to his property, including the names and addresses of persons filing the complaints. On January 3, 1995, he was advised by Mr. Al Ridner, Codes Enforcement Officer, that he must "make an appointment, come in and sign for the application, and request form [sic] . . . ." On January 5, Mr. Jerry Arlinghaus, whose relationship to Albert Arlinghaus has not been disclosed, submitted a request to the Public Works Department for "[t]he records of Al Ridner - Codes Enforcement Officer [and] Mary F. Shinkle - Solid Waste Coordinator," Office of Boone County Emergency Management, on a preprinted form which was apparently provided to him. On January 10, Albert Arlinghaus received a response from Ms. Shinkle, a copy of which was sent to Jerry Arlinghaus. Ms. Shinkle denied Mr. Arlinghaus's request, on the advice of Assistant Boone County Attorney Gwen Vice, because he had not completed the proper forms and had not submitted proof of ownership of the property. The Arlinghauses challenge the County's handling of their open records requests.
The issue presented in this appeal is whether the Boone County Public Works Department and the Office of Emergency Management violated the Open Records Act in responding to the Arlinghauses' requests. For the reasons set forth below, and upon the authorities cited, we conclude that these agencies violated the Act.
In 94-ORD-101, this office addressed an issue similar to the issue presented in this appeal. There we were asked to determine if an agency could properly deny a request because the requester failed to use a preprinted request form prepared by the agency. We concluded that this was an improper basis for denying access to public records. At page 2 of the decision, we reasoned:
KRS 61.872(2) . . . 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 requester 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 . . . 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.
94-ORD-101, pp. 2-3, citing OAG 76-588, p. 2. To the extent that the Office of Emergency Management's denial of Albert Arlinghous's request was premised on his failure to use the preprinted form prepared by and for that office, the denial constituted a violation of the Open Records Act. We believe that 94-ORD-101 is dispositive of this portion of Albert Arlinghaus's appeal.
With respect to the second basis for denial advanced by the Office of Emergency Management, we find that the office again violated the Act. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides, in part:
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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
Ms. Shinkle advised Mr. Arlinghaus that because he had not submitted proof of ownership of the property which was the subject of the complaints to which he requested access, she could not honor his request. Ms. Shinkle did not include a statement of the specific exception to public inspection, codified at KRS 61.878(1)(a) through (l), which authorized the withholding of the records or briefly explain how the exception applies to the records withheld. It is not sufficient, for open records purposes, to assert that the requester has failed to produce proof of ownership. As noted above, this is not a proper basis for denying a request to inspect public records under the Act. Accordingly, we find that the Office of Emergency Management must immediately respond to Albert Arlinghaus's December 27 request. If the office denies any portion of the request, it must cite one of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), and briefly explain its application to the records withheld.
To the extent that the Boone County Public Works Department apparently never responded to Albert Arlinghaus's request, it too violated KRS 61.880(1) by failing to issue a timely response. [1] Guided by the principles set forth above, the department should immediately respond to his December 27 request. For the same reasons, the department must respond to Jerry Arlinghaus's January 5 request. If it is not the official custodian of the records he seeks, it should so advise him per KRS 61.872(4). If it has no records which satisfy his request, it should so advise him per OAG 90-26. Similarly, the Office of Emergency Management must respond to his January 5 request forthwith.
Albert and Jerry Arlinghaus and the Boone County Public Works Department and Office of Emergency Management may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/181
Distributed to:
Mr. Al Ridner, Codes Enforcement Officer
P.O. Box 900
Burlington, KY 41005
Ms. Mary Frances Shinkle, Solid Waste Coordinator
Boone County Emergency Management
P.O. Box 900
Burlington, KY 41005
Albert and Jerry Arlinghaus
2825 Lawrenceburg Ferry Road
Petersburg, KY 41080
[1]Notice that Albert and Jerry Arlinghaus had appealed to the Attorney General, and a copy of their appeal, was sent by this office to Boone County Emergency Management on February 10, 1995. Since neither that office nor the Public Works Department disputed the facts presented in the appeal, we assume the accuracy of those facts.