Request By:
James M. Baker
General Counsel
Department of Banking and Securities
911 Leawood Drive
Frankfort, Kentucky 40601-3392
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
David R. Monohan, attorney, has appealed to the Attorney General on behalf of Ralph E. Newman, Jr. your denial of his request to inspect certain documents in your possession as General Counsel for the Department of Banking and Securities. Specifically, Mr. Monohan requested to inspect all records maintained by the Department of Banking and Securities pertaining to the change of control involving the Farmers Deposit Bank of Brandenburg, the Bowling Green Bank and Trust Company, and the Citizens Bank and Trust Company of Glasgow.
Your denial states that the documents in question were provided to the Department of Banking and Securities by federal regulatory agencies and therefore the Department of Banking and Securities is not the official custodian of the documents. Thus you direct Mr. Monohan to make a request for inspection to one of the federal agencies involved under the Freedom of Information Act.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper pursuant to the Kentucky Open Records law.
OAG 80-462 held that when two state public agencies are in the possession of the same requested public documents, then only the agency which has official custody is required to address the inspection issue, and either allow inspection or deny it based on a KRS 61.878 exemption. The agency with casual possession is not required to address the inspection issue if the agency with official custody also has possession.
We feel that OAG 80-462 is analogous to the instant situation, although only one state public agency is involved. You indicated in your denial letter to Mr. Monohan that the requested documents are federal documents filed with the Department of Banking and Securities by federal regulatory agencies. Therefore, the Federal Reserve Bank of St. Louis, Missouri would be the official custodian for records relating to Bank Holding Company Act filings and the Federal Deposit Insurance Corporation of Columbus, Ohio would be the official custodian for records relating to Change of Control Act filings. The Department of Banking and Securities, however, is just the casual possessor of these documents since they are still possessed by the federal agencies. As stated in OAG 80-462, the "official custodian" is the proper official to make decisions on policy concerning the release of records. By notifying Mr. Monohan of the official custodians where he may file a Freedom of Information Act request, you fulfilled the directive of KRS 61.872(3).
Therefore, it is the opinion of this office that your denial of public inspection of the change of control documents pertaining to the Farmers Deposit Bank of Brandenburg, the Bowling Green Bank and Trust Company, and the Citizens Bank and Trust Company of Glasgow as regards Mr. Ralph E. Newman, Jr. was proper under Kentucky Open Records law, since the Department of Banking and Securities is not the official custodian of these documents.
As directed by statute, a copy of this opinion is being sent to the requester who has may initiate further proceedings pursuant to KRS 61.880.