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 Clark County Sheriff Gary Lawson violated the Open Records Act in responding to Dale Emmons's April 27, 1998, request for information and records in Sheriff Lawson's custody. For the reasons set forth below, we find that the Sheriff's actions were only partially consistent with the Open Records Act.
We begin by noting a significant discrepancy in the facts of this appeal. The written record, upon which we must rely, suggests the following sequence of events. On April 27, 1998, Mr. Emmons requested copies of travel vouchers, expense reimbursement records, and other records of payment to Sheriff Lawson's brother and deputy, Larry Lawson, as well as Deputy Lawson's work schedule, time sheets, overtime records, leave requests, and mileage logs for office vehicles assigned to him. In addition, Mr. Emmons requested copies of billing records for cellular phones assigned to Deputy Lawson (and records reflecting reimbursements for cellular phone calls made for personal purposes), records of payments made by the Sheriff's office to businesses owned by Deputy Lawson, and records of other reimbursements made by Deputy Lawson for personal use of public property. Mr. Emmons also requested certain items of information including the number of arrests that Deputy Lawson has made (and copies of arrest citations) and the numbers of any cellular phones assigned to him. Finally, Mr. Emmons asked for "a listing of [Deputy Lawson's] benefit package" and those portions of the sheriff's policy manual relating to conducting personal business in the sheriff's office.
In a letter dated April 30, 1998, Sheriff Lawson responded to Mr. Emmons's records request by answering many of those requests in narrative form. Sheriff Lawson advised Mr. Emmons that Deputy Lawson made 40 arrests in the period from April 1, 1996, through April 29, 1998, but indicated that his citations are commingled with other citations. Sheriff Lawson advised Mr. Emmons that these records, along with Deputy Lawson's work scheduled, time sheets, overtime and leave records, and the sheriff's policy manual, were available for inspection in the Clark County Sheriff's office, and that copies of the records would be provided for 15 cents per page. Sheriff Lawson also furnished Mr. Emmons with information about Deputy Lawson's 1996 and 1997 gross salary and his benefit package. Sheriff Lawson affirmed that Deputy Lawson had received no other compensation or travel and expense reimbursement, and stated that there were no records reflecting mileage or cellular phone use. In closing, Sheriff Lawson identified four occasions in 1996, and six occasions in 1997, when Deputy Lawson's wife received payments, approved by the Clark County Fiscal Court, for professional services associated with her business.
In the late afternoon of May 15, 1998, Mr. Emmons went to Sheriff Lawson's office and "presented [his] request." It is unclear from the written record which of the documents originally requested Mr. Emmons asked to inspect. In his letter of appeal, Mr. Emmons described the visit as follows:
Mrs. Joyce Lawson said the records were not readily available and that it would not be possible to fulfill my request prior to the end of business. Mrs. Lawson did make the office policy and procedure's [sic] manual available to me. I purchased photo copies of two pages. She indicated that the office would compile the records for me. To date we have yet to receive the requested items.
Sheriff Lawson, who was not present during Mr. Emmons's visit, indicates that the following discussion took place:
On May 15 [Mr. Emmons] came to my office requesting copies of citations written by Sgt. Lawson. He was advised by my deputy that Sgt. Lawson's citations were not kept separate from all others and he could go through the files and then copies would be made of the ones he wanted. He advised my deputy that he did not have time to do that and wanted her to pull them up on the computer and then do a print out of each one. She advised him that would be very time consuming and since it was 20 minutes before closing time he would have to come back the next day. To date he has never been back to my office.
Shortly after this visit, Mr. Emmons initiated this open records appeal.
Based on the written record presented to this office, we find that the Clark County Sheriff complied with the procedural requirements of the Open Records Act by responding to Mr. Emmons's original open records request in writing and within three business days. Indeed, Sheriff Lawson went above and beyond his statutory duty in responding in narrative form to Mr. Emmons's requests for information. As we noted in OAG 89-81:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. OAG 76-375.
OAG 89-81, p. 5. See also OAG 81-333; OAG 86-51; OAG 90-19; 96-ORD-150. Additionally, Sheriff Lawson fulfilled his statutory obligations relative to nonexistent records, advising Mr. Emmons that no records exist which satisfy items c, e, f, and i of his request. See, e.g., OAG 90-26, p. 4 (holding that "if a record of which inspection is sought does not exist, the agency should specifically so indicate"); see also, OAG 86-38, OAG 91-101, and 97-ORD-161.
Whether Sheriff Lawson complied with the Open Records Act by affording Mr. Emmons adequate access to the requested records is a closer question. KRS 61.872(3) establishes guidelines for records access under the Act. That statute provides:
A person may inspect the public records:
(a) During the regularoffice hours of the public agency;
or
In construing these provisions, this office has observed:
The Open Records Act . . . contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186. . . .
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail.
We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
97-ORD-46, p. 2, 3.
Mr. Emmons apparently lives and works in Madison County. The disputed records are located in Clark County. Mr. Emmons therefore satisfies the first requirement of KRS 61.872(3)(b). The narrow issue, therefore, is whether he "precisely described" the records and whether those records "are readily available within the public agency. " Mr. Emmons requested specific public records relating to the conditions of Deputy Lawson's employment, records of monies received and paid out by Deputy Lawson, records relating to Deputy Lawson's use of public property, and records relating to arrests made, and citations issued, by Deputy Lawson. Although his request covers a broad range of records, the request describes, in definite, specific, and unequivocal terms, categories of records which he wished to access by receipt of copies through the mail. Thus, Mr. Emmons also satisfies the second requirement of KRS 61.872(3)(b) insofar as he precisely described the categories of records he wishes to access.
In construing the third requirement of KRS 61.872(3)(b), the Attorney General has stated:
This third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
97-ORD-46, p. 5. In so holding, however, we noted that it is "incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records."
Although Sheriff Lawson indicates that the records identified in Mr. Emmons's request are commingled with other records of the same kind, he does not describe, in even general terms, the difficulty in locating and retrieving these records. This is not sufficient to establish that the requested records are not "readily available within the public agency. " In the absence of evidence supporting his refusal to furnish Mr. Emmons with copies of the requested records by mail, we must conclude that the records are readily available, and that the Sheriff violated KRS 61.872(3)(b) by failing to honor his request for records access by mail. Sheriff Lawson must therefore mail the records to Mr. Emmons or challenge this determination in circuit court.
Sheriff Lawson's response also raises a reasonable copying fee issue. He indicates that Mr. Emmons may obtain copies of the requested records at a charge of 15 cents per page. We refer the parties to 98-ORD-95 (copy enclosed) for a discussion of reasonable copying charges under the Open Records Act. Unless the Clark County Sheriff can demonstrate that its actual cost for reproducing records, excluding staff costs, is greater than ten cents per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874.
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.