Request By:
Christopher W. Johnson, Esq.
Legal Office
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Allen W. Holbrook, Esq., has appealed to the Attorney General pursuant to KRS 61.880(4) your handling of his requests to inspect and copy various documents in the custody of the Kentucky State Police. Mr. Holbrook evidently received copies of what he was asking about as he is not maintaining that you improperly withheld any records and documents. He is, however, alleging that the manner in which you handled his requests was not within the terms and provisions of the Open Records Act.
At this point the only letters made available to this office concerning the appeal consist of your letter to Mr. Holbrook, dated August 4, 1988, and Mr. Holbrook's letter to the Attorney General, dated August 8, 1988.
Your letter to Mr. Holbrook was in response to his letter inquiring as to the status of his previous correspondence. In regard to his assertion that you should have replied within three days of the receipt of his request you said in part as follows:
". . . A closer reading of the Open Records Law and accompanying annotations of Opinions of the Attorney General will reveal to you that the Open Records Law contemplates personal requests and inspections of records before the right to copies exists. You will also note the three day limit applies, again, only to requests made in person."
You further responded to Mr. Holbrook relative to locating the documents he requested, your interpretation of the Open Records Act and the policy of the State Police in regard to requests by mail, by advising him as follows:
"The records you seek are located in Archives and therefore it has taken some time to identify and retrieve them. The Department of State Police is well within the requirements of law to refuse to mail copies of records that have not been inspected here by the requester. However, our usual policy is to recognize and respond to mail requests."
Mr. Holbrook's letter to the Attorney General maintains in part that you did not handle his requests pursuant to KRS 61.880(1) as you did not respond in writing within three days of the receipt of his original letter. He disagrees with your position that the three day response time does not take effect until the requesting party personally appears at the agency with his request.
The undersigned Assistant Attorney General talked with you by telephone on August 11, 1988, relative to Mr. Holbrook's requests. You stated that the material he requested was in Archives and it took some time to locate, secure and review it. Many times the documents requested from the State Police are located at one of the State Police Posts situated throughout the state rather than at the Frankfort facilities. In addition, the material can frequently be difficult to locate because the requesting party has furnished so little in the way of supporting facts and information.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides in part as follows:
"Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) 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 person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . . . ."
The above quoted provision includes the phrase "upon any request" and thus there is no distinction made, generally, between a written or oral request or a request made in person or a request mailed in to the public agency. The three day period in which the public agency must respond in writing begins when the agency receives the request regardless of the method used to communicate that request. See OAG 85-120, copy enclosed.
There is one exception to the principle set forth above which apparently is not applicable to this particular situation. KRS 61.872(2) states in part that the public agency "may require written application describing the records to be inspected. " If your agency had a regulation that a written application is required then the three day period in which you must respond in writing would begin when you received (in person or by mail) the written application.
The Open Records Act recognizes that there may be times when you cannot respond in writing within the three day period because, as you have mentioned, records cannot be obtained promptly. KRS 61.872(4) addresses that situation as follows:
"If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. "
Thus, if the records cannot be promptly obtained, the public agency is required to immediately notify the applicant of that fact and to establish a time as to when the records might be available (or a decision will be made as to the accessibility of the records in question). Regardless of whether the records can be quickly obtained a prompt response is required by the public agency.
This office has not been furnished with a copy of the requesting party's original letter of request so we cannot offer an opinion as to its preciseness in describing the records in question. We can only refer to OAG 76-375, copy enclosed, where we said that blanket requests for information on a subject without specifying certain documents need not be honored. If a person cannot describe the records he seeks to inspect with specificity there is no requirement that such records be sought out and made available for inspection by the public agency.
In your letter to Mr. Holbrook you referred to the requirement that documents be inspected before copies of those documents are obtained. KRS 61.874(1) begins with the sentence, "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 records." The right to obtain copies is, therefore, ancillary to the right of inspection and does not stand by itself.
While the Open Records Act does not require public agencies to send copies of documents to persons who have not first inspected those documents, this office has consistently urged that public agencies be as helpful and cooperative as possible. In OAG 86-24, copy enclosed, at page five, we said that a public agency should accommodate requesters 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 is easier for both the requesting party and the agency to simply answer the request through the mail.
In conclusion, it is the opinion of the Attorney General that the public agency should have responded in writing to the requesting party within three days of the receipt of the request received through the mail and if the records could not be obtained promptly the requesting party should have been notified at once of that development.
As required by statute, a copy of this opinion is being mailed to the requesting party, Allen W. Holbrook Esq. If you and the public agency disagree with this opinion or decide not to comply with the findings and conclusions expressed herein, you may initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.