NOT TO BE PUBLISHED

95-ORD-118

August 14, 1995

In re: Herbert L. Blevins/City of Melbourne, Kentucky

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the City of Melbourne's response to two open records requests of Mr. Herbert L. Blevins to review certain of the City's records.

By letter dated March 8, 1995, Mr. Blevins asked to review and copy the following records of the City:

1) Minutes of our January 1995 town council meeting.

2) The most current banking and savings and loan association statements, both checking and savings, any stocks and bonds owned by our city, if any, and the balance of any petty cash funds.

3) All resolutions, municipal orders, and ordinances which were identified, read, discussed, or voted on at the February 14, 1995 City Commission meeting.

4) All deposits made to all banking accounts of the City of Melbourne, Ky. from March 1, 1994 through March 8, 1995 including all records pertaining to these deposits.

In his letter of appeal, Mr. Blevins states that the City granted his request as to items 1 through 3 set out above but denied his request to review item number 4 relating to deposits to all banking accounts of the City from March 1, 1994, through March 8, 1995.

We are asked to review the City's response in this regard as to whether it was in violation of the Open Records Act.

By letter dated March 15, 1995, Mr. Thomas A. Wietholter, Attorney for the City of Melbourne, in his initial response to Mr. Blevins's request regarding the bank deposits, stated:

You then asked for all deposits made to all bank accounts of the City of Melbourne from March 1, 1994, through March 8, 1995, including all records pertaining. This request has already been complied with on numerous occasions specifically on August 25, 1994, you asked for copies of the City's income statement, balance sheet, and balance on all banking and savings accounts this information was given to you on September 2, 1994. On October 12, 1994, you reviewed with Della Kinsella all of the audits and financial statements of the City of Melbourne for the last six years.

Prior to that you met with Della Kinsella on September 28, 1994, at the City Building, at which time all of the City's financial documents were made available to you.

On September 30, 1994, you met with the Northern Kentucky Area Development District at their office to review all financial records of the City of Melbourne dealing with the Melbourne waste water collection system project. In attendance were both Morag Alder of the Ad District and Phyllis Mauntel.

In light of the numerous requests for financial documents that you have made and the City's compliance with those requests in accordance with Kentucky Revised Statute 61.872 subsection 6 it appears that your request number four, places an unreasonable burden in producing records that have already been produced to you and that it appears that your request is nothing more than an attempt on your part to disrupt the essential functions of the public agency. With your receiving the current banking statements you will have in your possession those documents which you are requesting in number four based on all of your previous open records requests and meetings.

On April 20, 1995, Mr. Blevins made another open records request in which he acknowledged being supplied with copies of deposits made to City bank accounts in February, 1995, and again requested to review all deposits made to City bank accounts from March, 1994 through March, 1995 or an explanation why he would be denied access to the other documents.

On April 24, 1995, Mr. Wietholter responded by reiterating his statements made in his March 15, 1995 response regarding Mr. Blevins's prior reviews of the requested documents and concluded by stating:

As stated earlier in this letter if you have specific request to review a specific document the city will of course comply with that request.

In light of the numerous requests for financial documents that you have made and the city's compliance with those requests in accordance with Kentucky Revised Statute 61.872 subsection 6, your request should be denied.

But, in the interest of trying to promote harmony within the City of Melbourne and in an attempt by the City of Melbourne to go beyond what is required of it under the open records statute I have arranged for you to meet privately and alone with the City Treasurer at the city building on May 4, 1995, at 10:00 a.m.

In his letter of appeal, Mr. Blevins states:

Having concerns about a "PRIVATE MEETING" with our treasurer, I discussed the matter with my attorney, Mr. Frank Wichmann, 4132 Dixie Highway, Erlanger, Kentucky 41018. Mr. Wichmann advised me to the following: 1) As Mrs. Kinsell [City Treasurer] is a witness for the City of Melbourne in ongoing litigation of my property, and 2) as Mr. Wietholter had falsely accused me of "creating a scene" in his office less than one month earlier, and 3) as our City Building is a public place, that it would be wise to have a witness present.

Following the advise of his attorney, Mr. Blevins brought a friend to serve as a witness to his open records inspection on May 4, 1995. Mr. Blevins further states that when they arrived at the city building, the City Treasurer told him that he had been instructed to meet with him alone during the review of the records. As a result Mr. Blevins declined to review the records which had been made available for him to inspect.

Subsequent to receipt of Mr. Blevins's letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, this office received a response from Mr. Wietholter, on behalf of the City, regarding the issues raised in this open records appeal.

For the reasons which follow, it is the decision of this office that the City's response to Mr. Blevins's open records request was in substantial compliance with the Open Records Act.

We address first the issue raised by Mr. Blevins that the City denied him access to its bank deposit records from March, 1994 to March 8, 1995.

A review of the letters, responses and documentation supplied by both parties indicates that on numerous occasions Mr. Blevins has asked to inspect and the City has allowed him to review at least the greater portion of the records which are the subject matter of this appeal.

The City has further produced documentation which indicates that Mr. Blevins has requested to review and has reviewed, at least some of the documents, on more than one occasion.

It is the City's position that because of these numerous requests for these same documents and the City's compliance with these requests, that the request which is at issue here constituted an unreasonable burden in producing records that have already been produced and was nothing more than an attempt to disrupt the essential functions of the City. Citing KRS 61.872(6), Mr. Wietholter stated that, based upon that section, the records request could be denied as an unreasonable burden on the City.

However, despite this position and "in the interest of trying to promote harmony within the City of Melbourne," Mr. Wietholter arranged for Mr. Blevins to meet privately and alone with the City Treasurer at the city building on May 4, 1995, to review the requested documents. (Wietholter response letter, dated March 24, 1995.)

As noted in the facts set out above, the requested records were made available for Mr. Blevins to review. He declined to review them because the City required him to review the records alone and not with a witness he had brought with him.

As to this issue, we conclude the City substantially complied with the Open Records Act by making the requested records available for review. KRS 61.872.

The second issue raised is whether the City subverted the intent of the Open Records Act short of denial of inspection by imposing unreasonable restrictions on Mr. Blevins's right of access to the requested records, i.e., requiring Mr. Blevins to review the records alone with the City Treasurer and not allowing him to review the records with a witness present.

For reasons which follow, it is the conclusion of this office that the City, in imposing restrictions upon Mr. Blevins's access to the requested records, did not subvert the intent of the Open Records Act.

Documentation supplied by both parties indicates that there is ongoing litigation between the City and Mr. Blevins; that Mr. Blevins has made numerous open records requests of the City; and the City has supplied Mr. Blevins with copies of many of the City's records.

KRS 61.871 provides the following policy statement regarding the Open Records Act:

The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.

As noted above, the City took the position that Mr. Blevins's repetitive requests for many of the same documents placed an unreasonable burden on the City and it could refuse to permit inspection under KRS 61.872(6). Nevertheless, the City chose to make those documents available to Mr. Blevins. The City informed Mr. Blevins in writing setting forth the date, time, and that the meeting would be in private with the City Treasurer. As Mr. Wietholter points out in his response to the letter of appeal, Mr. Blevins had ten days to contact the City that he wanted to bring a witness with him and make arrangements with the City to do so. He did not contact the City to make such arrangements.

Documentation presented by both parties evidenced certain tension and acrimony between the City and Mr. Blevins. Mr. Wietholter indicates that for security reasons it was determined that no one except Mr. Blevins and the City Treasurer should be present while Mr. Blevins reviewed the documents. The facts presented us support the conclusion that the restriction was imposed to ensure the safety and security of the Treasurer rather than to unreasonably restrict Mr. Blevins's access to the records.

The City substantially complied with the Open Records Act by notifying Mr. Blevins in writing of the place, time, and date on which the records would be available for inspection and under what conditions. KRS 61.872(5). Mr. Blevins had ample time to notify the City that these arrangements were unsatis- factory and make other arrangements.

The controlling fact in this issue is that the City made the requested records available for Mr. Blevins's review and he chose not to review them. The City made special arrangements for him and imposed the restriction that he review the documents alone with the City Treasurer. He had time to make arrangements with the City to have a witness present at the review and did not do so.

Under the facts of this case, the City's requirement that Mr. Blevins review the records alone with the City Treasurer did not subvert the intent of 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/700

Distributed to:

Thomas A. Wietholter

Klette & Klette

250 Grandview Drive

Suite 250

Ft. Mitchell, KY 41017-5610

Herbert L. Blevins

P.O. Box 126

Melbourne, KY 41059