Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Gallatin County Judge/Executive, Clarence Davis, violated the Open Records Act in responding to Randy Skaggs's January 5, 1998, request for access to records and information pertaining to Gallatin County's compliance with kentucky's dog laws. For the reasons that follow, we find that the county's response was partially inconsistent with the Act.
In a letter to this office dated February 24, 1998, Gallatin County Attorney Stephen P. Huddleston stated that because Gallatin County complies with Kentucky's dog laws, it does not consider itself a county "of noncompliance or partial compliance" with these laws, and therefore not a proper subject for Mr. Skaggs's request. Moreover, Mr. Huddleston noted, although some of the requested information "is properly reviewable . . . some is overly-broad, non-existent or constitutes an attempt to require the agency to create records. . . ." In closing, he advised that Gallatin County would honor "any request directed to the county judge/executive seeking access to existing, available, precisely described public records in its possession."
While we acknowledge that Mr. Skaggs's request under the Open Records Act was unorthodox, we believe that it was easily identifiable as such, and that he substantially complied with the Act in drafting it. KRS 61.872(2) provides that a written application for public records must consist of a description of the records to be inspected, the applicant's signature, and his name, printed legibly. It does not require that the request be specifically addressed to the public agency or the agency's custodian of records. While an open records request may not be the proper vehicle for criticism of official conduct and argumentation, we do not believe that the presence of this extraneous material in the request relieves the agency of its duties under the Act. Consistent with the rule announced in 94-ORD-101, namely that an agency cannot demand or require more in regard to a request for public records than is required by KRS 61.872(2), we find that Gallatin County improperly refused to respond to Mr. Skaggs's request on this basis.
In addition, we find that portions of Mr. Skaggs's request were drafted with sufficient specificity to require an unequivocal response from the county. 97-ORD-161. In part five of the request, Mr. Skaggs asks for copies of "contracts, financial compensation, expenditures, photographs of dog pound, . . . dog control ordinances, [and] . . . telephone listings." We believe that the proper response to this portion of Mr. Skaggs's request was to gather all existing documents satisfying the request, and, upon prepayment of reasonable reproduction charges, furnish him with copies of them. If no records exist which are responsive to the request, Gallatin County should have so advised him. OAG 91-101; OAG 90-69; OAG 90-26; OAG 86-38. The county's obligations under the Act were not suspended simply because Mr. Skaggs's request for records was commingled with a request for information.
With respect to this request for information, we find that Gallatin County properly took the position that it was not obligated to create a record or compile information to satisfy Mr. Skaggs's request. 96-ORD-139; 95-ORD-28. Nevertheless, the Attorney General has, on more than one occasion, observed:
When the request is one for information , rather than to inspect records , and thus does not technically conform to Open Records provisions, we believe the proper response . . . [is] to promptly respond in writing to the request. [The response should state] that while Open Records provisions [do] not require a public agency to compile information, records that might yield the information sought [will] be made available for inspection during normal office hours. . . .
OAG 90-19, citing OAG 86-75. We believe that OAG 90-19 is controlling as it relates to the agency's duties upon receipt of a request for information.
The Gallatin County Judge/Executive is directed to furnish Mr. Skaggs with copies of all existing records identified in part five of his request, and to afford him an opportunity to inspect all records pertaining to Gallatin County's enforcement of Kentucky's dog laws which might yield the information sought. If no records exist which satisfy his request, the county judge should immediately so advise Mr. Skaggs in writing.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.