Request By:
Joe Lamb
Vice President - Operations
Kentucky Publishing Company
722-730 West First Street
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General;
You have requested an opinion of the Attorney General as to whether state agencies are required to honor requests under the Kentucky Open Records Law for information by mail. You particularly question the stated policy of the Department of Finance not to furnish copies of bids requested by mail. (Stated in a letter to you from the Deputy Secretary dated March 25, 1983).
The Open Records Law, KRS 61.870 to 61.884, became effective on June 19, 1976. We were immediately faced with the question of whether a public agency would have to search out and compile material, make copies and mail the copies to the persons who had requested them. A newspaper reporter wrote the Kentucky Department of Education requesting nine categories of records which had been created in the department over a four year period. We issued OAG 76-375, copy attached. Among other things, we said in that opinion the following:
"The right to have copies of records is ancillary to the right of inspection and does not stand by itself. If a person has not inspected the records he desires to copy and cannot describe them with specificity, there is no requirement that copies of any records must be delivered to him. A citizen may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency, but a willingness to pay for copies of records is not sufficient to put the state agency under obligation to furnish broad categories of records."
Since that opinion was issued on July 6, 1976 we have reaffirmed it many times, but usually in the context of a request for records which would have to be searched out because they were not precisely described or could not be easily found, segregated and arranged for copying. You present a somewhat different question in that you requested a copy of only one type of record -- bids. The Department of Finance waived its policy and sent the material you requested.
The main thrust of the Open Records Law is that any person may inspect a public record which is not exempt by making a request to the official custodian of the record and personally going to the place where the record is kept or going to the place where the custodian says the record will be available for inspection at a stated time. KRS 61.872. This right is only qualified by Subsection (5) which states:
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 record.
Having established a person's right to inspect public records, the Open Records Law goes on to establish the rights and responsibilities of public agencies concerning the inspection of records. KRS 61.876 provides as follows:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to insure efficient and timely action in response to applications for inspection, . . . .
Nowhere does the statute provide that a public agency must mail copies of records on demand. KRS 61.874 provides that when a person is inspecting public records he shall have the right to make abstracts and memoranda thereof and to obtain copies of all written public records; but when copies are requested the custodian may require a written request and advance payment of the prescribed fee; that the public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof not including the cost of staff required.
The provisions of KRS 61.872, 61.874 and 61.876, when taken together, require that public agencies have a policy of allowing inspection of public records, of protecting the records, of preventing excessive disruption of the agency's functions, of providing copies upon request, of providing efficient and timely action in response to applications for inspection and of charging a reasonable fee based on the actual cost of making copies not including the cost of staff required. We believe that these three sections, taken together, allow public agencies a certain amount of leeway as to handling requests for records by mail and mailing copies to requesters who have not personally inspected the records and selected the items which they want copied.
The stated policy of the Department of Finance which you are challenging -- not to furnish copies of bids requested by mail -- is supported in the letter to you from Deputy Secretary Farmer by the following:
"We feel this is a necessary policy as we open hundreds of bids each month and some of them contain many pages. If one person is allowed to receive copies by request, we should honor all requests both in-state and out. We do not have the personnel or budget funds to furnish the copies that would be requested."
It is our opinion that if the Legislature had intended to require public agencies to prepare and distribute copies of this type of records it would not have placed the restriction against charging for the cost of staff time required to perform that function. We, therefore, believe that the policy of the Department of Finance is in accordance with the Open Records Law.
We are not saying in this opinion that when it is just as convenient and economical to a public agency to make a copy of a document and mail it to a requester it should refuse to do so. Public agencies should accommodate requesters whenever they can within the bounds of the efficient operation of their office. Whenever only one item is requested, or a few precisely described items which are readily available within the office, and no special search is required, it will be more convenient both to the agency and to the requester to answer the request through the mail, and we believe that should be done. To require the requester to appear in person at the office of the agency in such a case would not be more convenient to either party and would only inhibit the intended purpose of the Open Records Law. This was evidently recognized in this particular instance involving your request for records because the requested records were sent to you.