NOT TO BE PUBLISHED

In re: Donald J. Ruberg/Campbell County Cable Board

This is an appeal from the Campbell County Cable Board's response to two open records requests submitted by Donald J. Ruberg. Because the Board's responses to Mr. Ruberg's requests raise common questions of law, they are consolidated for purposes of appeal. The questions presented in these appeals center on the procedural obligations of a public agency in responding to an open records request, and its substantive obligations relative to disclosure of public records. For the reasons which follow, we find that the Cable Board's responses were both procedurally deficient and substantively violative of the Open Records Act.

On June 26, 1997, Mr. Ruberg requested copies of various operational and financial records of the Campbell County Cable Board including all invoices evidencing bills which were paid at the June 24, 1997, Cable Board meeting, and all correspondence submitted to the Board at that meeting. Although the Cable Board promptly responded to this request by releasing certain of the identified records and denying the existence of others, the Board notified Mr. Ruberg that the invoices and correspondence could "be reviewed at [the] Board office." Mr. Ruberg arranged to review the records on July 2, 1997, but upon arrival discovered that invoices reflecting payment to Board attorneys Rita Stull and Robin Harvey had been removed on Ms. Harvey's instructions. Mr. Ruberg then asked Ms. Harvey if he would be permitted to review the invoices, and was advised that she would first have to review them.

Having apparently received no word from Ms. Harvey, on July 8, 1997, Mr. Ruberg resubmitted his request to the Cable Board, identifying four other categories of records with which he wished to be provided copies. In general, these records related to contractual agreements between the Cable Board and Ms. Stull and the Cable Board and Ms. Harvey, as well as billing statements submitted by Ms. Stull and Ms. Harvey. As of July 17, 1997, Mr. Ruberg had received no response to this request. On July 28, this office received a copy of a July 24 letter from Mr. Ruberg to Ms. Harvey. In that letter, he references a     July 18 letter from Ms. Harvey in which she indicated she is producing copies of the "remaining statements." Mr. Ruberg complains to Ms. Harvey that the attachments omit an invoice for $10,860.16, approved at the June 24 meeting. Although Mr. Ruberg's letter does not specifically so state, we infer that the as yet unreleased paid invoice was for Ms. Stull or Ms. Harvey's legal services. In his letter, Mr. Ruberg also challenges the Cable Board's heavy handed redaction of nonexempt information appearing on the invoices released to him. Finally, Mr. Ruberg objects to Ms. Harvey's statement that she will respond to the remainder of his July 8 request at her earliest convenience, noting that KRS 61.880(1) requires a written agency response within three business days.

We first examine the procedural issues in this appeal. We focus on two provisions of the Open Records Act which establish guidelines for agency response to records requests: KRS 61.872(3) and KRS 61.880(1). KRS 61.872(3)(a) and (b) provide:

(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.

In a recent decision, this office recognized:

The Open Records Act . . . 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.

97-ORD-46, p. 2, 3. Mr. Ruberg states that he both lives and works outside of Campbell County. He has described in definite, specific, and unequivocal terms the records he wishes to access by mail. The Cable Board has not stated that the records he seeks are not "readily available within the public agency." Under these circumstances, the Board violated the Open Records Act by requiring him to inspect the records in its office prior to receiving copies.

Turning to the second provision, KRS 61.880(1) states:

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 agency action.

Although its initial written response to Mr. Ruberg was timely, the Board withheld certain invoices on Ms. Harvey's instructions. The Board did not provide an explanation of the cause of the delay and indicate the earliest date on which the invoices would be available per KRS 61.872(5), or, alternatively, cite the specific exception authorizing the withholding of the records and briefly explain how it applies to the records withheld per KRS 61.880(1). Aside from KRS 61.872(5), the Open Records Act does not recognize any other legitimate basis for enlargement of agency response time. The Act is clear in delineating an agency's duties when it denies, even in part, an open records request. The Campbell County Cable Board violated KRS 61.880(1) by failing to adequately explain the nonproduction of invoices reflecting payments to Ms. Stull and Ms. Harvey. Needless to say, the Cable Board's inaction relative to Mr. Ruberg's July 8 request constitutes a violation of this provision as well.

With respect to the substantive issues in this appeal, this office has made clear its position on the duty to disclose invoices generally, and attorney billing statements specifically. For example, in 93-ORD-58 we analyzed the agency's obligation to release various records generated in the course of litigation. At page 3, we observed:

The public is . . . entitled to review the contracts, vouchers, and other business records of a public agency, including records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys. Should these invoices and billing statements disclose substantive legal matters protected by the attorney client privilege, and exempt under KRS 61.878(1)[(l)], the exempt material should be separated by the nonexempt material, and the nonexempt material released for inspection. OAG 92-14; OAG 92-92.

93-ORD-58, p. 3. We believe that these principles apply with equal force to the open records dispute between Mr. Ruberg and the Cable Board. The Cable Board violated the Open Records Act by withholding invoices, contracts, and billing statements by and between the Board and its attorneys. The Campbell County Cable Board is directed to immediately respond to Mr. Ruberg's request by sending him copies of these records, subject to the principles set forth in the cited decisions, copies of which are enclosed.

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

#761

Distributed to:

Donald J. Ruberg

O'Hara, Ruberg, Taylor Sloan and Sergent

P. O. Box 17411

Covington KY 41017-0411

Robin E. Harvey

Baker & Hostetler

Suite 2650

312 Walnut Street

Cincinnati OH 45202-4038

Kirt Rockel

Campbell County Cable Board

175 Johns Hill Road

Highland Heights KY 41076