Request By:
Hon. Ervin L. Bramlage
Attorney-at-Law
307 Graves Avenue
Erlanger, Kentucky 41018
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an Opinion of the Attorney General as to whether the Erlanger-Elsmere Independent School District of Kenton County should comply with the request of Mr. Albert J. Roll to inspect certain public records? You state in your letter of February 23, 1977, that Mr. Roll has been requesting the opportunity to inspect various records for the last four or five months and that his requests and visits to the Board of Education's office are tantamount to harassment.
This Office has also received a request from Mr. Roll for the Attorney General to give an Opinion on your denial of inspection of certain public records. Mr. Roll appeals to the Attorney General under the provision of KRS 61.880, a provision of the Kentucky Open Records Law providing for such an appeal.
We also have before us a copy of your letter of February 23, 1977, to Mr. Roll in which you state that you are denying Mr. Roll's request to inspect records of Erlanger-Elsmere School District because Mr. Roll is not a resident of the school district and his requests are tantamount to harassment.
The records in question were listed in MR. Roll's letter addressed to Mr. John Miles, Superintendent, in a letter dated February 18, 1977, as follows:
(1) Resolution and Proceedings Ledger, pages 292-293;
(2) bid specifications for new administration building;
(3) bids received for new administration building
(4) contracts for the lease-rental of all autos used by the school system for the school years 1975-1976 and 1976-1977; and
(5) contracts for the lease-rental or purchase of a tractor from Calvin Cress (Minutes, July 8, 1976).
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides that when requested by the person seeking inspection of a public record, the Attorney General shall review the denial and issue a written Opinion to the agency concerned stating whether the agency acted consistent with the provisions of the Open Records Law, KRS 61.870 to 61.884. This particular controversy presents a number of questions and we will deal with each one in this formal Opinion.
(1) The records listed above are all public records and should be open to public inspection by any person requesting to make an inspection. The Open Records Law provides that all public records are open for public inspection unless expressly exempted by law. Certain categories of records which are exempted are listed in KRS 61.878. We find that none of the records listed above are exempted by said statute.
(2) The fact that Mr. Roll is not a resident of the school district does not justify withholding the records of the district from his inspection. KRS 61.872 provides that all public records shall be open for inspection by any "person." Under this statute a person does not have to be a resident of any particular place or even of the Commonwealth of Kentucky. He does not have to be a citizen of the United States. Nor is there any provision in the law that he must show any qualifying interest in the subject matter of the records. The requestor could be a newspaper reporter or any other person.
(3) The question of harassment depends upon the circumstances of each particular case. KRS 61.872(5) reads as follows:
"If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence."
In KRS 61.882, where it is provided that the circuit courts of the state shall have jurisdiction to enforce the purposes of this Act, it is stated in (4) as follows:
"Courts shall take into consideration the basic policy of this Act that free and open examination of public records is in the public interest and the exceptions provided for by this Act or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others."
Repeated requests to inspect the records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county, and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. The law provides that when a public record dispute is taken to court, "the burden of proof shall be on the public agency to sustain its action." KRS 61.882(3).
From the information at hand we cannot say that Mr. Roll's request to inspect records amounts to harassment or shows an intent to disrupt the essential functions of the Erlanger-Elsmere Independent School District.
In summary it is the opinion of the Attorney General that the records listed in this Opinion should be made available to Mr. Roll for inspection under such reasonable conditions as the custodian shall provide. The custodian's only concern should be to safeguard the records and to work out with the requestor an arrangement for inspection which will cause the least disruption of the operation of the agency office.