NOT TO BE PUBLISHED

96-ORD-63

March 21, 1996

In re: Brian L. Cullinan/City of Louisville

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the City of Louisville's response to Mr. Brian L. Cullinan's open records request, dated

February 12, 1996, to examine the following records:

All documentation regarding repayment by Rebecca Bennett Crow to the City of Louisville, for a $329.50 overcharge on the June, 1990 invoice for duplication of 4.5 hours billed for June 16 and 17, 1990 (PSC 90-2105); and for the $277.43 overcharge for the November, 1987 European trip expenses (PSC 88-2105), including copies of checks, requests from the City to Ms. Crow for repayment, responses from Ms. Crow, and any accounting or other financial records.

By letter dated February 15, 1996, Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, responded to Mr. Cullinan's request, stating:

To the extent your request is a blanket request for “all documentation,” it does not describe with reasonable particularity the records you are seeking. KRS 61.872.

However, if you wish to inspect the financial records reflecting the repayments, please contact Sara Parks. The City does not waive any other exemptions which may apply, including KRS 61.878(1)(i) and (j).

In his letter of appeal, dated February 20, 1996, Mr. Cullinan asks this office to determine whether the City's response that his request was a blanket request for “all documentation” because it did not describe with reasonable particularity the records he was seeking was proper under the Open Records Act.

Subsequent to receipt of Mr. Cullinan's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Guagliardo, by letter dated February 29, 1996, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Guagliardo states that the City denies that any records have been willfully denied Mr. Cullinan. In explaining this statement, Mr. Guagliardo states:

We take Mr. Cullinan at his word. “All documentation regarding” we took to mean “all documentation regarding.” That could mean anything and, based on your office's previous interpretation of KRS 61.872, we believe it constitutes an overly broad, blanket-request that need not be honored. 95-ORD-108; OAG 91-58.

As for the financial records we agreed to turn over, as of today Mr. Cullinan has made no attempt to inspect them. When he does, perhaps some of his other questions will be answered.

We are unable to determine what “checks” Mr. Cullinan is referring to. But if we have them, checks are always open to the public. As far as we can determine, there are no requests from the City to Ms. Crow for repayment and thus no responses thereto from Ms. Crow. There is a June 5, 1995, letter from Barbara J. Kalkhof, the City's Internal Auditor to Ms. Crow discussing the overbilling and reflecting arrangements to credit Ms. Crow's next billing statement. The City will waive any applicable statutory exemptions for this record and will forward a copy of the record to Mr. Cullinan under cover of this letter.

Records Mr. Cullinan may identify with particularity at a later date may be exempt under KRS 61.878(1)(i), (j) or some other statutory exemption.

By letter dated March 6, 1996, Mr. Cullinan submitted to this office a response to Mr. Guagliardo's February 29, 1996 letter. In relevant part, Mr. Cullinan states:

Mr. Paul Guagliardo's letter of February 29, 1996, proves beyond a doubt that records were willfully withheld from me. The June 5, letter referred to by Mr. Guagliardo was never identified by Mr. Guagliardo in his response to me. Mr. Guagliardo also violated the Open Records Act by failing to cite the specific exception authorizing nondisclosure and explaining how it applies to the records withheld. As your Office has previously stated, “these procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request.” 93-ORD-125.

Mr. Guagliardo's excuse that my request was a “blanket request” because I used the phrase “all documentation” is clearly disingenuous and was simply another attempt to thwart access to public records. Under Mr. Guagliardo's reasoning, a public agency can deny access to public records anytime a requester uses the words “all documentation,” regardless of how much specificity is included after those two words. This is an absurd conclusion. Even the opinions cited by Mr. Guagliardo contradict his position. Both OAG 91-58 and 95-ORD-108 require “reasonable particularity.” I have clearly done that based on the limited information I was given by the City Law Director in his February 9, 1996 letter to me . . . .

I have specified the records I seek regarding two specific overcharges and their apparent subsequent repayment. For example, I requested all documentation regarding these two repayments, including “requests from the City to Ms. Crow for repayment.” The June 5, 1995 letter attached to Mr. Guagliardo's letter to your Office clearly falls into this category. Yet Mr. Guagliardo willfully withheld this document from me, then “graciously” provided a copy in his response to your Office (Mr. Guagliardo feigns ignorance by stating that this letter is not a request for repayment of the specific overcharges I noted, but a letter reflecting that Ms. Crow's next payment will be reduced by the amount of that particular overcharge. This hair-splitting is clearly in bad faith). There is no possible way for me to know if Ms. Crow reimbursed the City by check, or allowed them to deduct the amount from her payment for these two specific overcharges. Mr. Guagliardo uses my uncertainty as an excuse to deny me access to public records.

For the reasons which follow, it is the decision of this office that the City's response was consistent in part and inconsistent in part with the Open Records Act.

Although an argument can be made, in some instances, that a request which asks for “all documentation” amounts to a blanket request (see 95-ORD-108; OAG 9285), we believe Mr. Cullinan's request, as required by KRS 61.872, was couched in sufficiently specific terms to identify the records which he wished to inspect and to enable the City to determine the particular records sought and, if they existed, make them available for inspection. The City's characterization of the request as a blanket request is misplaced and inconsistent with the Open Records Act. To the extent the City failed to make the requested records available to Mr. Cullinan on the basis that it was a blanket request, it was in violation of the Act.

However, the City in its initial response informed Mr. Cullinan that if he wished “to inspect the financial records reflecting the repayments, please contact Sara Parks.” Thus the City agreed to make financial records regarding repayments by Ms. Crow to the City available to Mr. Cullinan for his inspection. We conclude that this portion of the City's response was consistent with the Open Records Act. In addition, in his February 29, 1996 response letter to this office, Mr. Guagliardo states that Mr. Cullinan had made no attempt to inspect these financial records. Mr. Cullinan does not dispute this fact in his letter to this office, dated March 6, 1996.

Moreover, since Mr. Cullinan apparently resides in or his principal place of business is in the county in which the records are maintained, the City could require that he come into its offices to inspect the records. KRS 61.872(3)(b); 92-ORD-1620.

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.

A.B. CHANDLER III

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/165

Distributed to:

Brian L. Cullinan

Attorney at Law

1406 Browns Lane

Louisville, Kentucky 40207

Paul V. Guagliardo

Senior Attorney

City of Louisville

Department of Law

Room 200, City Hall

Louisville, Kentucky 40202-4215