Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the response of the Wheelwright Utilities Commission to the open records request of Donald Hall, Wheelwright City Commissioner, for:
copies of the Wheelwright Utilities Commission meeting minutes and financial reports for the months starting from January 1, 1996 to July 1, 1999. This also includes all special called minutes.
Responding on behalf of the Commission, Audrey Yates denied Mr. Hall's request for copies of the requested records, stating that it placed an unreasonable burden on the agency to produce that volume of records in such a short period of time. Instead, Ms. Yates offered to make the records available for Mr. Hall's inspection.
In his letter of appeal, Mr. Hall asks this office to determine whether the Commission's response was proper under the Open Records Act.
After receipt of Mr. Hall's letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Yates provided this office with a response to the issues raised in the appeal. In her response, Ms. Yates stated there was no intention to deny the information which Mr. Hall had requested, since the Commission offered to make a place available for reviewing the documents. She indicated that because of limited staff, workload, the volume of the requested records, and problems with the copying machine, Mr. Hall's request placed an unreasonable burden on the Commission. The Commission chose instead to make the records available for Mr. Hall's inspection rather than provide him with copies.
The issue presented in this appeal is whether the Commission violated the Open Records Act by requiring Mr. Hall to inspect the requested records prior to receiving copies. For the reasons that follow, we conclude that the Commission's response was proper and consistent with the Act and prior decisions of this office.
KRS 61.872(3)(a) and (b) establish guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(Emphasis added.) The statute thus 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. 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. Since he lives in Wheelwright, Mr. Hall can clearly be required to view the requested records at the office of the Commission before obtaining copies. 97-ORD-3.
With respect to the Commission's refusal to provide copies of the records per Mr. Hall's request, once the records are reviewed by Mr. Hall, we find that unless the Commission can make the assertion that the requests are unreasonably burdensome, it must provide copies of the requested records.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
Thus, as the statute directs, a denial based on this provision must be sustained by clear and convincing evidence.
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.