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 Trimble County Fiscal Court violated the Open Records Act in denying Pamela Rogers's request for copies of various records relating to animal control in Trimble County. For the reasons that follow, we find that the Fiscal Court improperly refused to honor her request for copies.
On March 8, 1999, Ms. Rogers requested that the Trimble County Fiscal Court "mail copies" of the records identified below to her office in Louisville, Kentucky:
1. All documents, invoices, requests for payment, bills or other means of initiating payment or reimbursement submitted by, or on behalf of, dog warden to Fiscal Court or any representative since January 1, 1992.
2. Records, including but not limited to canceled checks, warrants or journal entries, reflecting all payments to dog warden for services performed or for expenses reimbursed since January 1, 1992.
3. Any Fiscal Court resolution designating, appointing or authorizing any person to act as the dog warden for Trimble County during the period January 1, 1992 to present.
4. Any documents considered or relied upon by Fiscal Court in designating or appointing any person to act as the dog warden for Trimble County during the period January 1, 1992 to present.
5. All reports, documents, summaries, descriptions or accounts of the official activities of any person authorized to act as dog warden in Trimble County during the period January 1, 1992 to present.
6. All reports, documents, summaries, descriptions or accounts of animal control activities, including operation of an animal shelter during the period January 1, 1992 to present.
7. All reports, documents, summaries, descriptions or accounts regarding the collection and/or the disposition of any animal by any person authorized to act at (sic) the dog warden in Trimble County from January 1, 1992 to present.
8. Invoices, bills, requisitions, purchase orders, warrants or other documentation for property or supplies purchased or leased for the operation of an animal control shelter or for the care of animals from January 1, 1992 to present. Items included in this request include, but are not limited to, animal food, cages, gas or vehicles, vaccines, cages or any other material used to operate a shelter.
9. Any document which indicates the fees, if any, by any person acting as the dog warden of Trimble County during the period January 1, 1992 to present.
10. Invoices, purchase orders or other requests for payment from any veterinary service provider submitted to the Dog Warden or the Fiscal Court of Trimble County, during the period January 1, 1992 to present.
Ms. Rogers did not receive a written response to her request, but was orally advised by Trimble County Judge/Executive Ray Clem that the Fiscal Court would not provide the requested copies. This appeal followed.
In a written response to Ms. Rogers's appeal, Trimble County Attorney Perry R. Arnold explained that Ms. Rogers "did not make a proper request for open records under the statute." Relying on KRS 61.872(1), he maintained:
Her letter did not request a time to come to the office of the County Judge/Executive and inspect the records. She said in her letter that the records should be mailed to her. There is no provision in the statutes that would require the County Judge/Executive's office to examine records for Ms. Rogers, sort through them, copy the records she wanted and mail them to her. She certainly would be privileged to make arrangements through the County Judge/Executive's office to come and inspect the records as allowed by law.
In closing, Mr. Arnold noted that the County Judge/Executive issued an invitation to Ms. Rogers to come to his office to inspect the records, but confirmed that Judge Clem advised her that "he did not have time to go through them for her and mail her what she had requested." It is the opinion of this office that the Trimble County Fiscal Court does not articulate a legally supportable basis for refusing to honor Ms. Rogers's request.
KRS 61.872(1), upon which the Trimble County Fiscal Court relies, establishes the general rule of public access to agency records. As Mr. Arnold correctly observes, that statute provides:
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.
Contrary to the view expressed by the Fiscal Court, the Open Records Act does not restrict public access to agency records to on-site inspection. Instead, KRS 61.872(3)(a) and (b) provide:
(3) A person may inspect the public records:
In construing this provision, the Attorney General has stated:
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.
97-ORD-46, p. 2 and 3 (emphasis added). As a result of legislative amendments to the law, the position formerly espoused by this office, that the right to copies is ancillary to the right of inspection and does not stand by itself, has been firmly rejected.
Ms. Rogers works, and apparently resides, in Louisville, Kentucky. The requested records are located in Bedford, Kentucky. She therefore satisfies the first requirement of KRS 61.872(3)(b). The Trimble County Fiscal Court does not argue that the requested records are excluded from public inspection by one or more of the exceptions to the Open Records Act codified at KRS 61.878(1)(a) through (1). Nor does the Fiscal Court argue that the requested records are not precisely described or not readily available with the agency. 1 Instead, the Fiscal Court asserts that the Open Records Act does not require it "to examine records for Ms. Rogers, sort through them, copy the records she wanted and mail them to her." The Trimble County Fiscal Court is in error in advancing this claim. Accordingly, we find that the Fiscal Court violated the Open Records Act in refusing to honor her request for copies, and offering, as her only alternative, to permit her to conduct an on-site inspection of the records.
Given the breadth of Ms. Rogers's request, and the apparently limited staffing resources available to the Trimble County Fiscal Court, we believe that a reasonable extension of the three day statutory deadline for agency response may be warranted under KRS 61.872(5). 2 This observation should not be construed as a license to indefinitely postpone access to the records. The Fiscal Court must immediately notify Ms. Rogers when she can anticipate receipt of the copies she requested, and the anticipated date must be the earliest practicable date. The Fiscal Court may, of course, require prepayment for copies, including the cost of mailing, but not including staff costs.
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.
Footnotes
Footnotes
1 The Fiscal Court offers no proof on the difficulties associated with producing copies of the records identified in Ms. Rogers's request. There is no indication that the description of the records is not sufficiently precise to permit the Fiscal Court from locating and retrieving the records, or that the records cannot be readily accessed in discrete files. Inasmuch as the burden of proof in sustaining a denial to permit inspection or mail copies of public records rests with the agency, we cannot affirm the Fiscal Court's actions in the absence of any supporting evidence. KRS 61.880(2)(c).
2 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.