Request By:
Mr. Gregory G. Bohnett
Administrative Officer
Nicholasville Planning Commission
517 North Main Street
Nicholasville, Kentucky 40356
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of September 19, 1989, Robert and Dorothy Duncan have appealed regarding the Nicholasville Planning Commission's having provided what they term a "summary" of information, rather than permitting inspection of original records containing the information they sought.
KRS 61.880(2) provides, in part, for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
The Nicholasville Planning Commission acted consistent with Open Records provisions where it responded to a request partly for "information," as distinguished from inspection of a record, by supplying a list or transcript (as distinguished from a summary) of information from records containing some confidential and some public information. The general rule that the public is entitled to inspect the "original" of a public record, does not hold where a record contains some information that is of a personal nature, and some that is public, thus requiring "separation" of confidential information from public information. Masking and copying of an "original" may be employed where feasible, or a list or transcript may be provided, to satisfy inspection requirements involving records that contain some information that is public and some that is confidential.
FACTUAL BACKGROUND
By letter of September 19, 1989, Robert J. and Dorothy J. Duncan have, in substance, appealed regarding your response to their September 14, 1989 (dated September 13) request to inspect (or perhaps for information from) certain records of the Nicholasville Planning Commission. Their letter set forth what might be termed a chronology or synopsis of certain events related to their efforts to inspect records of the Commission. Several correspondence items were attached to their September 19, 1989 letter.
We understand from a telephone conversation with Mrs. Duncan on November 29, 1989, and perhaps another occasion, that their concern upon this appeal relates specifically only to a letter to you, from the Duncans, dated September 13, 1989. Accordingly, we do not discuss or set forth those matters contained in the Duncans' letter that we consider extraneous to the issue(s) here.
The Duncans' September 19, 1989, letter to this office states in part:
September 14, 1989 - We arrived at the Planning Commission office at approximately 8:00 a.m. Mr. Bohnett saw us in the hallway at approximately 8:40. We gave him the letter . . . [dated September 13, 1989], he read it, asked a few questions and told us to come back on Friday, September 15th at 3:00 p.m. and he would comply with out [sic] request.
The September 13, 1989, letter to you, a copy of which was attached to the Duncans' appeal to this office, stated, in part:
. . . [W]e are requesting permission to inspect and review the following information and obtain copies of selected pages:
1. Salaries and benefits of all employees of the Nicholasville Planning Commission.
2. List of current Nicholasville Planning Commission members, date of their appointment and expiration of term.
[Emphasis added.]
The "synopsis of events" contained in the Duncans' September 19, 1989, letter to this office, further states, again in part:
September 15, 1989 - We returned to the Nicholasville Planning Commission Office at 3:00. The receptionist, Mrs. Robinson stated Mr. Bohnett was not in and would be out the rest of the day. We were then handed an envelope which contained only summaries of requested information. We told Mrs. Robinson that we could not accept that information and that we wanted to review the records as our letter of request had stated.
[Emphasis added.]
Mrs. Duncan indicated their concern was that they were not allowed to inspect the literal original of the records that contained the information they sought.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case, a request to ". . . inspect and review the following information and obtain copies of selected pages" was submitted to your agency on September 14, 1989 . On that same day, you verbally advised the Duncans that you would comply with their request by Friday, September 15th, at 3:00 p.m. [See quotation above from the Duncan's "synopsis" in their letter to the Attorney General dated September 19, 1989.] It then appears, again based upon the Duncan's letter to this office dated September 19, 1989, that you or the Commission (through the Commission's receptionist) , furnished certain information to the Duncans on Friday, September 15th, 1989, one day after you received the Duncans' request dated September 13, 1989. The Duncans characterize the information provided to them as "summaries of the requested information ."
In our view, the Duncans tendered a request which could be taken as a request to be provided certain information, since their request specifically mentions or refers to "information." It further appears you supplied, the next day after receiving a request regarding certain information, the information requested, though perhaps by furnishing what might be termed a transcription of the information, rather than by offering for inspection, original documents containing information requested.
Where as here, it appears that on the same day you received a request at least in part for information, but perhaps also to inspect records, and that same day you indicated you would comply with the request by the following day, and you furnished, that following day, certain information that appeared to satisfy the request, we find no basis for concluding that you acted other than consistent with KRS 61.870 to 61.884.
The Duncans complain that they were denied the right to inspect original records containing the information they were furnished. This office has said that requester's are entitled to inspect "originals" of public records, and may not be limited to being provided a copy, or given a "summary." See for example, OAG 82-396. This view does not apply, however, where a record contains both information of a public character, and information that would be termed of personal nature within the meaning of KRS 61.878(1)(a).
KRS 61.878(4) provides that:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.
The authority provided by KRS 61.878(4) to "separate" confidential (excepted) information from a record, means, in practical effect, that the public is not always entitled to inspect a literal original. Where payroll records, for example, contain some information that is deemed confidential within the meaning of KRS 61.878(1)(a), the agency may separate the confidential information from the public information.
The typical approach, as we said in substance in OAG 89-90, is to "mask" or cover confidential information contained upon the original of a record, make a copy of the "masked" original, and furnish the copy of the masked original to the requester. In other words, it is not in every case that inspection of the literal original of a record must be permitted.
If you have original records, e.g., a list that contains the names of current Nicholasville Planning Commission members, and the date of their appointment and expiration of their term you should permit the Duncan's to inspect such records or list. If such original record or list contains information of a personal nature that might be exempted pursuant to KRS 61.878(1)(a), you may "mask" or cover such information, and provide a copy of the record as described above, or provide a transcription of the information as indicated below.
A similar rule would apply to payroll or salary records which typically contain information, some of which has been deemed public and some of which has been deemed of a personal nature within the meaning of KRS 61.878(1)(a), and thus not subject to inspection absent a court order. See, for example, OAG 82-233; OAG 82-275.
We have no reason to believe that the information you furnished to the Duncans can be properly termed a "summary." We believe you attempted to furnish an accurate transcription (as technically distinguished from a "summary") of information sought, as a method of separating confidential information from public information. We cannot say that, given the nature of the records and the information sought by the request, such approach (as distinguished from furnishing a copy of "masked" originals as discussed above) was improper. We approved such procedure in OAG 81-309 (copy attached), and follow that opinion here.
Any discrepancy the requesters believe exists, or may exist, as between the information furnished upon what the requesters term a "summary," and information shown upon a literal original of a record, should be resolved by direct discussion with you.
Your agency should carefully follow KRS 61.880(1) and (2), where appropriate, in connection with a request to inspect its records. A copy of Kentucky's Open Records provisions are enclosed for your reference.
Robert J. and Dorothy J. Duncan may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Robert J. and Dorothy J. Duncan.