Request By:
Mr. William Schmidt, Chairman
Elizabethtown Airport Board
c/o Coca Cola Bottling Company
1201 North Dixie Avenue
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of July 11, 1989, Mrs. Anne J. Lawson has asked the Attorney General's office to review the actions of the Elizabethtown Airport Board in connection with her May 19, 1989 request for copies of certain documents in connection with the Airport Board or its activities.
FINDINGS IN BRIEF
The Elizabethtown Airport Board failed to act consistent with provisions of KRS 61.870 to 61.884 by failing to respond in keeping with KRS 61.880(1) and (2), to a request to inspect public records.
FACTUAL BACKGROUND
By written request dated May 19, 1989, which apparently was tendered to you on May 25, 1989, Anne Lawson asked that the Elizabethtown Airport Board provide copies of a variety of records of the Board.
Specifically, Mrs. Lawson asked that copies of the following records be furnished:
1. All agreements between the Board and the Federal Aviation Administration, State of Kentucky (Transportation Cabinet, Office of Aeronautics), City of Elizabethtown, and any and all other parties regarding grants made to the Elizabethtown Airport Board for funding of the Elizabethtown Airport, at Addington Field.
2. Minutes of all meetings of the Elizabethtown Airport Board, budget projections, and financial statements for the period December 1, 1983 through the present.
3. Copy of the contract for erecting the airport terminal building and any and all financing arrangements made regarding the terminal.
4. Copies of the contracts made with Jetstream International and Comair Airlines regarding use of the airport facilities.
5. Copy of the contract with Falcon Aviation.
The Board appears to have responded by referring Mrs. Lawson's request to its counsel, John J. Scott. Counsel, in turn, wrote a letter dated June 1, 1989 to Mrs. Lawson's attorney, Pamela Addington, indicating, in part, that if the request were put in the form of a request for production of documents (presumably under discovery rules in connection with civil litigation), the Court would be asked to rule on entitlement to the information. The Board's counsel indicated further that minutes of meetings (among the items sought by Mrs. Lawson's request) were believed to have been previously furnished, and if they had not, Mrs. Lawson should specify which minutes were needed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides, in part, for the Attorney General to review, upon request, a denial of a request to inspect public records, and issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
The Elizabethtown Airport Board is a public agency subject to Open Records provisions. KRS 61.870(1), KRS 183.011(6).
KRS 61.880(1) provides, in substance and in part, that upon any request for records made under Open Records provisions, an agency shall determine, within three working days after receipt of a request, whether to comply with it. The agency is to give notice, in writing, of its determination, within the three day period. KRS 61.880(1) also provides that:
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 response shall be issued by the official custodian or under his authority and it shall constitute final agency action.
Subsection (2) of KRS 61.880 provides in part that:
A copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General of the Commonwealth of Kentucky.
There was no agency response, in keeping with KRS 61.880 (excerpts supra), to Mrs. Lawson's request. The Board's counsel did respond to Mrs. Lawson's request, but that response was not one that satisfied requirements imposed upon a public agency pursuant to KRS 61.880. Accordingly, the agency did not act consistent with provisions of KRS 61.870 to 61.884.
We note that Mrs. Lawson has requested copies of documents extending over a substantial period of time, which would, in all likelihood, involve hundreds, and perhaps thousands, of pages of material. An agency is not required, under Open Records provisions, to provide copies upon request, except after records have been inspected. KRS 61.874.
The records Mrs. Lawson requested copies of appear to be of a nature subject to routine inspection by the public. The Elizabethtown Airport Board should arrange for Mrs. Lawson to inspect the records in question should she want to do so. After she has made such inspection, she is entitled, pursuant to KRS 61.874, to request copies of records she has inspected.
The presence of litigation among the parties, alluded to in the Board's counsel's letter, should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process. We do not, in making this observation, indicate that Open Records provisions should be used as a substitute for requests under discovery procedures associated with civil actions. Where records may subsequently be offered as evidence in court, problems in establishing their integrity may be more difficult for those obtained under Open Records provisions, as compared with records obtained under discovery procedures.
Your agency may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion to the Hardin Circuit Court.
As required by statute, a copy of this opinion is being sent to Mrs. Anne Lawson, who requested it.