Request By:
Mr. Rick McHugh
Staff Attorney
Legal Aid Society, Inc.
425 W. Muhammad Ali Blvd.
Louisville, KY 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
This is an open records opinion pursuant to KRS 61.880 which we are directing to you and to the Division for Unemployment Insurance.
By letter dated December 8, 1982 you complained to the Attorney General that the Division for Unemployment Insurance, Department for Human Resources had not properly complied with your request to inspect certain records in their custody relating to your client, Mr. John Binford. You enclosed the following documents: A copy of your letter to Mr. Bob Schilling dated October 11, 1982; Request for inspection of records form addressed to Mr. John Walker, Office of the Counsel, Cabinet for Human Resources, 275 East Main Street, Frankfort, KY 40621 delivered by certified mail on December 6, 1982; A letter to Mr. Walker dated December 3, 1982; A responding letter from Mr. Walker to you dated December 7, 1982. You described the records you were requesting to inspect as follows:
"All adjusted determinations establishing overpayments against the unemployment insurance account of John Binford, any recoupment receipts showing repayment of overpayments by Mr. Binford's account, any other documents relating to overpayment or recoupment on Mr. Binford's account, including computer printouts, and any correspondence between Rich McHugh or John Binford and the agency which relates to Mr. Binford."
In your letter to Mr. Walker you stated: "I am directing this request to you since you are the custodian of these records and have admitted possession to me in my recent phone conversation re records relating to me in my recent phone conversation re records relating to Mr. Binford's unemployment insurance account." Mr. Walker responded to you in his letter of December 7, 1982: "I am not the custodian of the records of Mr. Binford maintained by the Division of Unemployment Insurance. I do not recall admitting that I was the official custodian of these records in any telephone conversation with you." Mr. Walker suggested that you make a request for inspection to the Director of the Division of Unemployment Insurance who would be the official custodian of the records.
Since Mr. Walker's response to you seemed to us to be somewhat evasive we telephoned Mr. Walker on December 22, 1982 to determine if he in fact had the records in his possession. He assured us that he did not have the records in his possession, that he expected to obtain possession of the records in the near future and would send a copy to you, and that he had already told you that he would do so. He stated his belief that if you were seeking to invoke the Open Records Law you should address your request to the official custodian.
On December 29, 1982 we telephoned your office and were told that you would not be in until January 3, 1983. We wanted to talk to you to see if you understood Mr. Walker's position and to inform you of his statement that he did not possess the records. On January 4, 1983 we had the desired discussion with you.
We pointed out that in this case the agency had not made an outright denial of access to the records and had not made any claim that you were not entitled to inspect the records. You stated that you thought the agency was misdirecting you because they were afraid that you were going to file a suit on Mr. Binford's account; that you had sued them before; that you believed that you had made a sufficient request to the proper persons; that the agency was stalling and was subverting the Open Records Law without actually denying inspection.
PERTINENT STATUTES
"KRS 61.880(4). In the event a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person making complaint in writing to the Attorney General and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
"KRS 61.872(2). Any person shall have the right to inspect public records during the regular office hours of the public agency. The official custodian may request written application describing the records to be inspected.
(3) If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him."
OPINION OF THE ATTORNEY GENERAL
1. Mr. Walker stated to us on December 22 that he did not have possession of the requested records. We accept that statement as fact because he is the one who is in the position to know the facts.
2. We believe that Mr. Walker did not sufficiently comply with the spirit and the letter of the Open Records Law by his response to you on December 7, 1982 suggesting that you direct your request to the Director. As an employee, agent and attorney for the division Mr. Walker should have directed the request to the proper person -- the director of the division as official custodian or to whomever the director had designated to be the custodian of records.
3. We believe that you made a sufficient request for inspection of records and that you should have been notified when and where the records would be available for your inspection.
4. It is the opinion of the Attorney General that the Division of Unemployment Insurance, Department for Human Resources has not acted in accordance with KRS 61.870 to 61.884 in its failure to allow inspection or make a proper response to your request to inspect records after three months from the date of your initial request.
A copy of this opinion is being sent to the agency for its compliance or to challenge in the circuit court within thirty days.