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 Jefferson County Sheriff subverted the intent of the Open Records Act, short of denial of inspection, by refusing to permit Thomas E. Ewen's client, Larry O'Bryan, to exercise his right to inspect records of the Sheriff's office, which we recognized in 98-ORD-17, along with Mr. Ewen and Jim O'Daniel. For the reasons that follow, we find that the Sheriff's refusal to permit inspection of the records under these conditions constitutes a subversion of the intent of the Act.
In 98-ORD-17, the Attorney General held that although the Jefferson County Sheriff was not obligated to compile information or create records to satisfy Mr. O'Bryan's request, the Sheriff was required to make available for inspection, during regular business hours, records which might yield the information sought. We noted that the requested information, or records yielding that information, could, in general, be characterized as financial and operational records of the Sheriff's office, and that "among the numerous items of information requested by Mr. O'Bryan, we [were] hard pressed to identify any which would not be subject to disclosure if contained in one or more existing records." 98-ORD-17, p. 8, 9. This decision was not challenged in circuit court, and therefore has the force and effect of law. KRS 61.880(3)(b).
The controversy in the appeal before us centers on the conditions under which Mr. O'Bryan will exercise his right of inspection. Mr. O'Bryan wishes to bring Mr. Ewen and Mr. O'Daniel, a former employee of the Sheriff's office who is also an accountant, with him when he comes to the Sheriff's office to review the records. The Sheriff objects that this will unnecessarily prolong the review process, arguing that:
[Mr. O'Bryan] is free to inspect the records, make copies and seek professional assistance with them on his own time and in his own surroundings. He is not permitted to secure that professional assistance at the Jefferson County Sheriff's Office, thereby forcing the [office] to accommodate not only him, but two other individuals at the same time . . . [and] dramatically lengthen the inspection time without accomplishing anything for which the Open Records Act was passed.
Additionally, the Sheriff objects to assigning three of his employees to monitor "three party inspection" of the documents, when he would otherwise only be required to assign one employee. The Sheriff proposes, as an alternative, that Mr. O'Bryan "designate a single delegate to inspect the records on his behalf in lieu of his personal attendance," and that this person hold degrees in both law and accountancy "if both financial and legal advice are desired."
In a follow-up letter to this office, the Sheriff asserts that it is not he who is obstructing Mr. O'Bryan's access to records of his office, but Mr. O'Bryan's attorney, Mr. Ewen, who has instructed Mr. O'Bryan to forego inspection until Mr. Ewen and Mr. O'Daniel can be present. The Sheriff argues:
Mr. Ewen's suggestion that the Open Records Act requires a public agency to permit the requesting party, as well as his or her professional advisers, to conduct an inspection simultaneously has no support in the letter or spirit of the Act, or Attorney General and court opinions construing the Act. As your office noted in its opinion in this very case, a public agency has the option to avoid on-premises inspection altogether by electing to send copies of the documents to the requesting party. 98-ORD-17 at 4-6. If the requesting party does not have an absolute right to an on-site inspection, certainly his surrogates have no such right.
It is his position that "to minimize the commitment of time and burden on the public agency, " the Open Records Act contemplates an expeditious review of documents on-site, followed by a request for copies of some or all of the documents, and in-depth analysis of these documents "in another setting." Finally, the Sheriff argues that Mr. Ewen and Mr. McDaniel's presence serves no useful purpose since laymen can, and do, regularly inspect these records without professional assistance.
We find none of these arguments persuasive, and state, at the outset, that Mr. O'Bryan, and the public generally, has an absolute right to conduct on-site inspection of public records. This is not a courtesy extended to the public, and to Mr. O'Bryan, subject to the terms and conditions dictated by the Sheriff's office or any other public agency. An interpretation of 98-ORD-17 that is inconsistent with this view is clearly erroneous. There is ample support for this position in the Open Records Act itself and in open records decisions construing the Act.
KRS 61.872(1) provides that "all public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." (Emphasis added). Subsection (2) of that provision states that " any person shall have the right to inspect public records ." (Emphasis added.) Finally, KRS 61.874(1) provides that "upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof. . . ."
In interpreting these provisions, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. Thus, in OAG 76-375 we held that if an applicant cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . ." OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the applicant asserted the right "to inspect the . . . documents during the regular office hours of the department. . . ." OAG 81-198, p. 4. The Attorney General concluded that the applicant had "not made any demand on [the] agency which is beyond the scope of the Open Records Law. " Id.
Echoing these opinions, in 1990 we held that the Rowan County Clerk erred in denying a request for equally broad categories of information for a ten year period. Recognizing that the applicant had requested information, rather than to inspect reasonably identified records, this office nevertheless held that the clerk's response "should have stated that while Open Records provisions do not require a public agency to compile information [to conform to the parameters of a given request], records that might yield the information sought would be made available for inspection during normal office hours. " OAG 90-19, p. 3. In a similar vein, in 97-ORD-6 the Attorney General reaffirmed the principle that "public agencies are not required to compile information to satisfy . . . a request, . . . [but] agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 4 (emphasis added).
In January, 1997, the Attorney General was again asked to determine whether a public agency has authority to prescribe the method by which access to documents is provided. In 97-ORD-12, the applicant asserted his right to inspect some 1300 files in the custody of the Cabinet for Public Protection and Regulation. The Cabinet resisted, prompting an appeal. At page 3 of that decision, this office observed:
As in OAG 81-198, [the applicant's] request that he be permitted to exercise his right to inspect the files is not a "demand on [the] agency which is beyond the scope of the Open Records Law. " Contrary to the Cabinet's apparent belief, and subject to the provision that the agency may adopt rules and regulations in conformity with the Open Records Act to provide full access to public records, to protect public records from damage and disorganization, and to prevent excessive disruption of its essential functions, the decision whether to conduct an on-site inspection of the records rests with [the applicant]. KRS 61.876(1). "Unreasonable restrictions upon inspection may not be imposed." OAG 89-81, p. 4.
Lest there be any lingering doubt, the Attorney General emphatically stated, in closing, "we believe that the Open Records Act does , with limited exception, give the applicant . . . the authority to prescribe the method of records access." 97-ORD-12, p. 4 (emphasis in original); see also, 97-ORD-166; 97-ORD-8; 97-ORD-6; 92-ORD-1439; OAG 89-81; OAG 89-76; OAG 81-198.
Public agencies are also required, by law, to make suitable facilities available for exercise of the right of inspection. KRS 61.872(1). In addition, KRS 61.872(3)(a) states, "A person may inspect the public records: (a) During the regular office hours of the public agency [.]" Finally, KRS 61.876(1) requires each public agency to adopt rules and regulations aimed at providing "full access to public records . . .," and "assistance and information upon request. . . ." That statute also requires that an agency's rules and regulations "insure efficient and timely action in response to application for inspection. . . ."
In 93-ORD-39, this office considered KRS 61.872 and KRS 61.876, observing:
Underlying each of these provisions is the recognition "that free and open examination of public records is in the public interest. . . ." KRS 61.871. This office has consistently recognized that public agencies must work in a spirit of cooperation with individuals wishing to inspect their records. See, e.g., OAG 91-58. This necessarily includes creating an environment which is conducive to effective inspection.
The Random House Dictionary defines the term "suitable" as "correct or appropriate for a particular purpose or occasion." While a requester cannot expect the agency to provide facilities offering the enforced silence of a library, he may certainly expect that those facilities will afford him adequate opportunity to inspect the records without interruption, and without harassment.
93-ORD-39, p. 3. Similarly, those facilities should be adequate to accommodate more than one requester. While the requester cannot expect the agency to provide facilities which are large enough to accommodate an army of advisors and analysts, he may certainly expect that the facilities will comfortably accommodate three individuals working in concert or entirely independently. As in all matters not specifically addressed by the Open Records Act, we apply a reasonableness standard.
Simply stated, public agencies, including the Sheriff's office, are statutorily bound to make available for public inspection all nonexempt public records in their custody during the regular office hours of the agency, and to provide suitable facilities for the exercise of this right. KRS 61.872(1) and KRS 61.872(3)(a). We repeat, for purposes of emphasis, that, "Unreasonable restrictions upon inspection may not be imposed." OAG 89-81, p. 4 (emphasis added). This means that the Sheriff cannot restrict the hours of access to public records in the course of the business day, cannot condition exercise of the right to inspect those records on the availability of an employee or employees to oversee the inspection, and cannot avoid his statutory duty based on the requester's identity or purpose, or the need "to minimize the commitment of time and burden on the public agency. "
Thus, in 93-ORD-48, the Attorney General stated:
This Office has consistently recognized that any attempt by a public agency to limit the period of time within which a requester may inspect public records places "an unreasonable and illegal restriction" upon the requester's right of access. OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39. If, in fact, [the agency] requires as a precondition to the right of inspection the presence of an employee . . ., and that employee is not available to oversee the review of documents during all regular office hours, [the agency] has in effect restricted access to public records in contravention of KRS 61.872(3)(a).
KRS 61.876(1) requires a public agency to adopt rules and regulations "in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, [and] to prevent excessive disruption of its essential functions . . . ." While this provision does not expressly permit a public agency to appoint an employee to oversee the review of its records, we believe that such a policy is consistent with the agency's grant of authority to protect its records and prevent excessive disruption of its essential functions. Nevertheless, we do not believe that the policy can be used to limit the number of hours during the regular work day when a requester may inspect records. Nor do we believe that the employee designated to oversee the requester's review may interfere or disrupt his or her inspection of the records.
93-ORD-48, p. 2.
With respect to the requester's identity or purpose, the Kentucky Court of Appeals has expressly stated that the right of access:
does not turn on the purposes for which the request is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access information as the next.
Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825, 828 (1994); see also, OAG 78-473 ("Under the Open Records Law the custodian of records is not concerned with the purpose for which public records may be used but only with the nature of the records"); OAG 79-275 ("The purpose of the inspection of public records and how the information obtained from public records will be used is not material under the Open Records Laws. The only material factor in invoking an exception is the nature of the record . . ."); OAG 82-233 ("Exemption[s] should be invoked according to the nature of the record and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection" ). The right to inspect public records cannot be granted on a selective basis as, generally, "what can be seen by one person can be sees by every person." 92-ORD-113, p. 3. Thus, whatever Mr. O'Bryan's specific purpose is in reviewing financial and operational records of the Sheriff's office, we firmly believe that inspection of these records serves a valid "Open Records Act related public interest, " Zink at 829, and that disclosure "provides impetus for [the] agency steadfastly to pursue the public good." Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992).
In closing, we remind the parties that "it is contrary to the letter and spirit of the Open Records Law for an agency to make it more difficult to inspect a public record than it was before the . . . law was enacted." 94-ORD-101, p. 3. At page 3 of OAG 77-151, this office observed:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. . . .
Mr. O'Bryan and the Sheriff should bear these observations in mind as they calmly and rationally proceed to inspection of the records of the Sheriff's office deemed nonexempt in 98-ORD-17.
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.