TO BE PUBLISHED
97-ORD-46
March 19, 1997
In re: Larry G. Bryson/Kentucky Labor Cabinet
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky Labor Cabinet's response to Larry G. Bryson's January 31, 1997, request for copies of various documents relating to prevailing wage schedule hearings. Those documents are identified as:
1. The names and locale of all public authorities or interested person who have requested a hearing for a review of your determination of the prevailing wage schedule for the construction of public works in that locale, and the date of those requests. (Pursuant to KRS 337.522)
2. A copy of each request referred to hereinabove.
3. The date and place of each such hearing.
4. A copy of all decisions of the hearing or review.
5. A copy of all prevailing wage schedules for the construction of public works within the Commonwealth of Kentucky.
6. A copy of the public notice that was made pursuant to KRS 337.522 of any hearing conducted in Laurel County, Kentucky, within the past twelve (12) months.
Mr. Bryson is an attorney representing the Laurel County School District, and his request was made under Kentucky's Open Records Act.
On behalf of the Kentucky Labor Cabinet, Secretary Joe Norsworthy responded to Mr. Bryson's request on February 6, 1997. On advice of the Office of General Counsel, Secretary Norsworthy advised Mr. Bryson that his request “is vague in some areas and . . . unclear of what information you are needing.” In addition, Secretary Norsworthy maintained, the “request, if responded to fully would be too voluminous and would pose a financial hardship and a personnel hardship on the Division of Employment Standards Apprenticeship and Training.” In closing, the Secretary agreed “to set a time and a date for you to review the records and documents you have requested and to make copies of these documents.”
We are asked to determine if the Kentucky Labor Cabinet violated provisions of KRS 61.870 to 61.884 in responding to Mr. Bryson's request. For the reasons set forth below, and upon the authorities cited, we conclude that although the Labor Cabinet was not obligated to honor those portions of Mr. Bryson's application which consist of requests for information, it erred in refusing to send him copies of the records identified in that application.
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The Open Records Act thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186. Mr. Bryson lives and works in Laurel County. The disputed records are located in Franklin County. Mr. Bryson therefore satisfies the first requirement of KRS 61.872(3)(b). The narrow issue in this appeal is whether he “precisely describe[d]” the disputed records, and whether those records “are readily available within the public agency.”
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester “describe” the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to “precisely describe[ ]” the records which he wishes to access by mail. In construing KRS 61.872(2), this office has observed:
[A]lthough the purpose and intent of the Open Records Act is to permit the “free and open examination of public records . . . ,” this right of access is not absolute. [KRS 61.871]. As a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he wishes to review. OAG 89-81; OAG 91-58. Thus, in a series of opinions, we have held that “[b]lanket requests for information on a particular subject without specifying certain documents need not be honored.” OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58. Elaborating on this position, in OAG 89-8, at p. 2, we observed:
The Open Records Act provides in part in KRS 61.872(1) that all public records, with certain exceptions, shall be open for public inspection. While persons will obviously acquire information from these records, the primary purpose of the Act is making records available for public inspection. The Act does not require a public agency to provide information beyond that which is made available from permitting access to the public documents. Thus, if the agency is to provide access to public documents the person seeking to inspect those documents must identify them with sufficient clarity to enable the public agency to locate and make them available.
If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.
See also, 93-ORD-116; 94-ORD-12. Those decisions echoed the position which was first articulated by the Attorney General in OAG 76-375, and are premised on the notion that:
[Public] agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
It is . . . incumbent on a requester, in framing his request, to describe the records he seeks to inspect with reasonable particularity. If he does not, the agency is not obligated to conduct a search for the records.
95-ORD-108, p. 2, 3. Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate “descri[ption]” for purposes of on-site inspection pursuant to KRS 61.872(2). We have not, however, had occasion to articulate a standard for determining if a requester has described the records he wishes to access by mail with “precis[ion].”
A description is precise if it is “clearly stated or depicted,” Webster's II, New Riverside University Dictionary 926 (1988); “strictly defined; accurately stated; definite,” Webster's New World Dictionary 1120 (2d ed. 1974); and “devoid of anything vague, equivocal, or uncertain.” Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
Mr. Bryson asked that the Cabinet furnish him with copies of requests for hearings for review of prevailing wage schedules for the construction of public works in a locality pursuant to KRS 337.522, all decisions of the hearing or review, all prevailing wage schedules for the construction of public works within the Commonwealth, and the public notice that was made pursuant to KRS 337.522 of any hearing conducted in Laurel County, Kentucky, within the past twelve months. Inasmuch as the language of his request mirrors the language of KRS 337.522, we do not believe that it can reasonably be argued that it is imprecise. Although it covers a broad range of records, the request describes, in definite, specific, and unequivocal terms, categories of documents which he wishes to access by receipt of copies through the mail. Thus, we believe that Mr. Bryson also satisfies the second requirement of KRS 61.872(3)(b) insofar as he has precisely described the categories of records he wishes to access.
Whether Mr. Bryson's request satisfies the third requirement of KRS 61.872(3)(b) is a closer question. The Cabinet is obligated to mail him copies of the records he requests only if those records “are readily available within the public agency.” This third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that “[public] agencies and employees are the servants of the people . . . , but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time,” OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
It is, however, incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records. [1] Secretary Norsworthy states that Mr. Bryson's request, “if responded to fully would be too voluminous and would pose a financial hardship and a personnel hardship on the Division of Employment Standards Apprenticeship and Training.” This is not sufficient, in our view, to establish that the requested records are not “readily available within the public agency.” He does not indicate the number of records implicated by Mr. Bryson's request, the locations at which they might be stored, or the difficulty in accessing those records. In the absence of any evidence supporting this bare allegation that responding to the request will pose a financial and personnel hardship, we are left with no alternative but to conclude that the records are readily available within the agency. [2]
In closing, we note that two of Mr. Bryson's requests, specifically requests number one and three, do not technically conform to the Open Records Law insofar as they are requests for information rather than requests for records. These requests need not be honored since Open Records provisions “are not intended to provide a requester with particular `information,' nor to require public agencies to compile information to conform to the parameters of a given request.” OAG 90-19, p. 3 citing OAG 76-375; see also, OAG 89-77, OAG 89-81, 93-ORD-7; 95-ORD-15. With respect to the remainder of Mr. Bryson's request, we find that the Labor Cabinet is obligated to deliver copies of the identified records to him by mail pursuant to KRS 61.872(3)(b).
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
Amye L. Bensenhaver
Assistant Attorney General
#201
Distributed to:
Larry Bryson
Bledsoe & Bryson
408 North Main Street
London KY 40741
Joe Norsworthy
Secretary
Kentucky Labor Cabinet
1047 U. S. 127 South
Frankfort KY 40601
[1] The Labor Cabinet did not cite KRS 61.872(6) as the basis for denying Mr. Bryson access by sending him copies through the mail. That provision authorizes public agencies to “refuse to permit inspection of the public records or mail copies thereof,” if the application places an unreasonable burden on the agency. Refusal under KRS 61.872(6) “must be sustained by clear and convincing evidence.”
[2] It is conceivable that the scope of Mr. Bryson's request could be narrowed, thus facilitating easier access by mail. For example, he could identify a specific time frame within which the records identified in his request were generated. As we have so often done, we encourage the parties to this appeal to work, in a spirit of cooperation, toward an amicable resolution of their dispute.