Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration and
Official Records Custodian
100 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Clarke Dunlap has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to obtain copies of various records in your custody. In his letter to you Mr. Dunlap states that he is invoking the provisions of the Open Records Act to gain the right of inspection and copying of all records of the University's Student Health Service from August of 1979 to August of 1982, which name or pertain to him. He specifically requested that you provide him with photostatic copies of all such documents and mail them to him at an address in Louisiana.
In his letter to the Attorney General Mr. Dunlap states that he has received no communication from the University relative to his request for copies of the documents in question. He seeks an opinion from this office directing you to furnish the copies with which he is concerned.
On April 3, 1986, the undersigned Assistant Attorney General talked with you by telephone. After a brief conversation you directed me to John C. Darsie, Esq., the University's General Counsel.
The undersigned talked by telephone with Mr. Darsie on April 3, 1986. He advised that as a result of extensive litigation involving Mr. Dunlap, including the case of Dunlap v. University of Kentucky Student Health Services Clinic, decision rendered February 27, 1986, presently pending before the Kentucky Supreme Court on a Petition for Rehearing, he and Mr. Dunlap's attorney had made an oral agreement that Mr. Darsie would deal with Mr. Dunlap's attorney, and not Mr. Dunlap, on all matters pertaining to Mr. Dunlap and his case. Mr. Dunlap is represented by a Lexington, Kentucky, attorney, Timothy N. Philpot, Esq., Anggelis and Philpot, 139 Market Street, Lexington, Kentucky 40507.
Mr. Darsie maintains that Mr. Dunlap has already been furnished with copies of numerous medical records, he has made numerous requests for copies with some duplication in the requests and the requests involve numerous documents.
It is also maintained by Mr. Darsie that Mr. Dunlap must inspect the documents before he can request copies of those documents.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides in part that a public agency, upon a request for records under the Open Records Act, shall determine within three days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the persons making the request, within the three day period, of its decision.
Thus, the University of Kentucky, as a public agency pursuant to KRS 61.870(1), should have responded in writing to the requesting party within the statutorily imposed time period and advised him of its decision not to furnish by mail copies of the records requested. Such a written communication could have advised or remined the requesting party of the agreement between the requesting party's attorney and the University's General Counsel relative to requests to the University by the requesting party. That same letter to the requesting party could also have set forth the University's reliance upon KRS 61.874(1).
The University's General Counsel maintains that the University has not violated the provisions of the Open Records Act as it is not required to provide copies of public documents until after those documents have been inspected. Neither the requesting party nor his attorney have requested to actually inspect the documents in question or have they appeared at the University to inspect the documents.
KRS 61.874(1), relative to the inspection of public records and the obtaining of copies of those records provides:
"Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee. If the applicant desires copies of public records other than written records, the custodian of such records shall permit the applicant to duplicate such records, however, the custodian may insure that such duplication will not damage or alter the records."
In OAG 76-375, copy enclosed, we said that the Open Records Act does not require state agencies to provide copies of records upon a request made by mail. At page three of that opinion we said in part as follows:
"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."
In OAG 79-547, copy enclosed, we said that the purpose of the Open Records Act is not to provide information but to provide access to public records which are not exempt from inspection by law. There is nothing wrong with making a request by mail but the response of the public agency need only be that the records will be made available for inspection at a certain place and time.
This office in OAG 82-629, copy enclosed, said that a sheriff's office or a police department is not necessarily required to send copies of documents to a requestor by mail. The Open Records Act does not contemplate that a public agency shall send requested records to a person who has not inspected them. We, therefore, concluded in OAG 82-629 that a sheriff's office is not required to send copies of records which have not been inspected by the requesting party even though the requestor is an inmate who is not able to personally inspect the records because of legal confinement.
The Open Records Act does not require that a public agency send copies of records by mail to a person who has not first inspected those records. A public agency, therefore, has a certain amount of leeway as to handling requests for records by mail and mailing copies to persons who have not first inspected the records and then selected the items which they want copied.
This office has said in OAG 83-204, copy enclosed, that a public agency should accommodate requestors whenever it can within the bounds of the efficient operation of its office. Generally, when only one item is requested or a few precisely described items are requested which are readily available without any special search, it may be more convenient to the requesting party and the agency to simply answer the request through the mail. In this particular situation, however, the University's General Counsel maintains that numerous records and documents are involved and, furthermore, the requesting party is represented by a local attorney who could appear and inspect the documents in question.
It is, therefore, the opinion of the Attorney General that while the public agency should have responded in writing pursuant to KRS 61.880(1), to the requesting party's letter pertaining to the request for copies of documents, the public agency is not mandatorily required to send copies of records to a requesting party by mail when the requesting party has not first inspected those records and then selected the items he wants copied, particularly when numerous records and documents are apparently involved. KRS 61.874(1).
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Clarke Dunlap, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).