Request By:
Mr. Harold Taylor
Daviess County Jailer
Daviess County Detention Center
110 St. Elizabeth Street
Owensboro, Kentucky 42301
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Rodney F. Delegal, an inmate at Lewisburg Federal Penitentiary, has appealed to the Attorney General, pursuant to KRS 61.880(4), your failure to respond to his repeated attempts to secure access to public documents in the possession of the Daviess County Detention Center. KRS 61.880(4) provides that a person may appeal to the Attorney General if he or she feels that the intent of the Open Records Act is being subverted by an agency short of denial of inspection. The disputed documents are identified as the "Record Book" and/or log maintained by your facility. Mr. Delegal indicates that he has written to you on numerous occasions requesting copies of public records, and that as of April 1, 1992, the date on which he prepared his letter of appeal, you had not responded. Although this Office has not been furnished with copies of his earlier open records requests, Mr. Delegal has attached a copy of his most recent request, dated March 6, 1992, to his appeal.
In a conversation with the undersigned on April 28, 1992, Daviess County Attorney Robert Kirtley acknowledged that there had been a delay in responding to Mr. Delegal's open records requests occasioned by the breadth, and apparent ambiguity, of those requests. He estimated that in order to satisfy Mr. Delegal's request, your office would be required to reproduce some six thousand pages. Mr. Kirtley stated that he intended to issue a response to Mr. Delegal, advising him that he would be required to inspect the documents prior to being provided with copies thereof, pursuant to KRS 61.874(1). On May 1, 1992, this Office received a copy of Mr. Kirkley's denial, issued on your behalf.
In his letter of appeal to this Office, Mr. Delegal notes that the three day response time has expired. He asks that we review your handling of his requests to determine if you acted consistently with the Open Records Act. For the reasons set forth below, we conclude that although your handling of his request was procedurally inconsistent with the Act, you correctly advised Mr. Delegal that he would be required to inspect the documents identified in his requests, prior to being furnished with copies.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this Open Records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your failure to respond to Mr. Delegal's request in a timely fashion and to send a copy of your response to the Attorney General constitutes a violation of the Open Records Act. If, as Mr. Kirtley suggests, the request, as drafted, placed an unreasonable burden on your office, requiring you to produce voluminous public records, you should have so advised Mr. Delegal and invoked KRS 61.872(5). We urge you to review the relevant provisions of the Kentucky Revised Statutes to insure that future responses conform to the Open Records Act.
Turning to the ultimate issue in this appeal, we find that Mr. Kirtley advised Mr. Delegal that he would be required to inspect the requested documents in advance of having copies of them made. KRS 61.874(1) provides, in part:
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.
(Emphasis added.) This Office has consistently recognized that the right to have copies of records is ancillary to the right of inspection. OAG 76-375; OAG 82-629; OAG 83-42; OAG 88-44; OAG 89-76. In the cited opinions, we held that if a person has not inspected the records he desires to copy, and cannot describe them with specificity, the Open Records Act does not require that copies of records be delivered to him. Hence, a willingness to pay for copies is not sufficient to obligate a state or local agency to furnish broad categories of records.
With specific reference to inmates, the Attorney General has opined, "It is not incumbent upon a public agency to provide records to inmates who are unable to go to the office where the records are kept because of their legal confinement." OAG 79-546, at p. 2. See also OAG 82-629; OAG 83-42; OAG 83-204; OAG 88-44. Therefore, Mr. Kirtley properly advised Mr. Delegal that he would be required to inspect the requested documents prior to being furnished with copies of them.
We would be remiss in failing to note that the 1992 General Assembly amended the Open Records Act to provide for the mailing of precisely described records which are readily available within the public agency upon written request and without inspection. KRS 61.872(3)(b). This amendment, which will take effect on July 14, 1992, represents a radical departure from prior open records law, and should be born in mind by public agencies which may be required to reevaluate their policies relative to requiring inspection in advance of providing copies. Nevertheless, under the facts presented in this appeal, we would reach the same conclusion regardless or whether we applied existing law or the law as amended, since Mr. Delegal failed to precisely describe the records he wished to inspect. In addition, any request which requires the reproduction of six thousand documents must be deemed "unreasonably burdensome," within the meaning of KRS 61.872(5) (as amended KRS 61.872(6)).
As required by statute, a copy of this opinion will be sent to Mr. Rodney F. Delegal. Both you and Mr. Delegal may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).