Section 14-2-8. Procedure for Requesting Records

The right to inspect applies to any nonexempt public record that exists at the time of the request. A records custodian or public body is not required to compile information from the public body’s records or otherwise create a new public record in response to a request. 

Example 47:
A person asks a county personnel officer for a list of all employees with college degrees. The office does not keep lists of employees with college degrees, although college degree information may be included in an employee’s personnel file. The records custodian is not required to go through each file to find and list employees with college degrees. It may, however, make the nonexempt portions of all personnel files available to the requester so she can peruse them in search of employees with college degrees.

A written request for public records must include the requester’s name, address and telephone number, and must identify the records sought with reasonable particularity. (See Appendix II, Form I.) By “reasonable particularity” the Act does not mean that a person must identify the exact record needed, but the description provided should be sufficient to enable the custodian to identify and find the requested record. 

Example 48:
A person goes to the offices of the municipal air pollution control board and fills out a records request form. In the space provided for a description of the records requested he asks to see all complaints about noxious automobile emissions filed with the municipal air pollution control board. (The board has a policy of making complaints public and complainants are informed of the policy when they file a complaint.) The custodian refuses to allow inspection unless the requester identifies the particular vehicle or vehicles that are the subject of the complaint. The custodian’s requirement is unreasonable because the requester has identified the records he wants to see with sufficient particularity to enable the custodian to locate and identify them.

 Commentary
A person has the right under the Act to inspect public records for any or no reason, including idle curiosity or personal gain. The Act provides that a custodian may not require a requester to state why he or she wants to see a record. However, other statutes governing particular records may restrict their use in certain circumstances.

Example 49:
A pharmaceutical salesman wants to put together a mailing list of all the doctors in the state so he can send them samples of his various drugs. He may inspect records of public agencies to put together the list. He may not, however, demand that the agency compile such a list if one is not already available.

Example 50:
A business requests a copy of the Taxation and Revenue Department’s unclaimed property database. Even if the records requested are otherwise public, the applicable state statute prohibits use of a state agency’s computerized database for solicitation or advertisement when the database contains the name, address or telephone number of any person unless such use is otherwise specifically authorized by law. A person who uses or permits the unauthorized use of a database may be subject to criminal penalties. In its records request form, the Department may not require the business to state its reason for inspecting the database, but, to help protect itself from criminal liability, may require the business to sign a sworn statement asserting that the database will not be used for solicitation or advertisement.

Commentary
Sometimes questions come up regarding the relationship between the Act and requests for records in the context of discovery in civil litigation. For example, an inspection request under the Act may be made instead of or in addition to a discovery request. Generally, the two schemes for obtaining records are separate and independent; the availability of records under the Act does not affect a litigant’s discovery rights or vice versa. Unless an applicable exception to the right to inspect public records applies, a public body may not deny an inspection request just because the requester is engaged in litigation against the public body or has asked for the same records in discovery. If a  public body involved in litigation believes that another party is misusing either the procedures under the Act or the rules governing discovery to harass the public body, to interfere with its ability to participate in the litigation or for other improper purposes, the public body might petition the court for an appropriate order.

When a records custodian receives a written request for a record, the record must be made available immediately, or as soon as practicable under the circumstances. If access will not be provided within three business days after the written request is delivered to the custodian, the custodian must explain in writing to the requester when the records will be available or when the agency will respond. (See Appendix II, Form II.) This written explanation should be mailed or delivered to the requester on or before the third business day after receipt of the request. Inspection must be allowed no later than 15 calendar days after the custodian receives the request, unless, as discussed later in Chapter IX, the request has been determined to be excessively burdensome or broad. (See Appendix I for a chart illustrating the deadlines imposed under the Act.) For purposes of the deadlines imposed by the Act, the day the written request is received is not counted. The following examples comply with the Act: 

Example 51:
On Monday, the custodian of records for a conservancy district receives a letter requesting copies of the district’s vouchers evidencing the district’s expenditures for the previous month. The records custodian determines the vouchers are not exempt from disclosure. However, some of the requested vouchers are still in the possession of the official responsible for issuing them, and the custodian cannot obtain the vouchers from that official for seven days. On Thursday, the custodian sends a letter to the requester informing her that she can come to the office and make copies of the available vouchers immediately and that the remaining vouchers will be available the following Wednesday.

 Example 52:
The office of the records custodian for a school district is open Monday through Friday. On Friday, a news reporter appears at the custodian’s office and makes a written request for copies of résumés of the final candidates for the position of school superintendent. The following Wednesday (three business days after the request was received), the custodian delivers a notice to the reporter stating that she can make the résumés available, but that she will need some time to obtain them from the search committee. The notice tells the reporter that the records will be available on Monday (ten calendar days after the request was received).

Example 53:
A written request is made in person to the records custodian for the Property Control Division for records showing the physical alterations made to ensure that all state office buildings are in compliance with the Americans with Disabilities Act. The records are being used and not available that day. The custodian fills out a form stating when the records will be available during the next 15 calendar days and gives a copy to the requester.

Sometimes, a person may send a request for records to the wrong entity. Should this occur, the Act places an affirmative responsibility on the person who receives such a request in writing to forward the request to the proper custodian, if known, and to notify the requester. (See Appendix II, Form III.) The notification to the requester must state the reason for the absence of the records from that person’s custody, the location of the records and the name and address of the proper custodian. If, after reasonable inquiry, the initial recipient of the request is unable to determine where the records might be located or who the proper custodian is, it would be permissible for the recipient to inform the requester that he or she does not have custody and to explain the efforts made to find their location and the result of those efforts.

Example 54:
The State Records Center receives a written request for Department of Public Safety records and records of an entity the requester refers to as the “state circus bureau.” The Records Center complies with the Act by forwarding the request to the records custodian of the DPS, and sending a letter to the requester telling him that the Center is not the proper records custodian for purposes of requests for DPS records and that his request has been forwarded to the DPS’s records custodian. The letter also states that a state circus bureau does not exist and that the Records Center has not been able to identify any other agency that might have custody of the records described in the request.

Commentary
The time periods discussed above for responding to an inspection request begin to run when the proper custodian receives the request, not when the request is received by any custodian or public body. Thus, if agency A receives a request that should have gone to agency B, the three-day and 15-day time periods for responding to the request do not apply until the request actually reaches the records custodian for agency B.

Under the Act, a written request to inspect public records may be submitted via email or facsimile to a records custodian. As written requests, email and facsimile requests to inspect public records must comply with Section 14-2-8(C) of the Act, which, as previously discussed, specifies the information that must be included in a written inspection request. The email address and facsimile number  to be used for receiving electronic requests needs to be included in the public notice required by Section 14-2-7(E) of the Act.

As a written request, an email or a facsimile request to inspect public records is covered by the same requirements and deadlines that apply to any other written request. Consequently, public bodies must ensure that electronic communications are directed to and received by their records custodian for prompt and proper processing. Furthermore, appropriate measures need to be taken for handling electronic requests in the records custodian’s absence. For example, a public body might set up  a separate email address to which inspection requests may be sent or directed and which is accessible to the records custodian and other employees responsible for handling inspection requests.