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 Pike County Fiscal Court violated the Open Records Act in its disposition of Ernest D. Adkins' September 28, 2000, request for records and information identified as:
Altered checks and time sheets from January 1, 2000, to date[;] Gallons of fuel, gasoline and diesel, from January 1, 1998 to date[.]
Mr. Adkins did not receive a written response to his request, but was orally advised on October 9, 2000, that he could inspect the records in the office of the County Judge/Executive during regular office hours. Because he is employed by the Pike County Fiscal Court, and works during these hours at a location within Pike County that is some thirty minutes from the courthouse, Mr. Adkins initiated this appeal, contesting the fiscal court's position. For the reasons that follow, we find that although Section (15) of the fiscal court's written policy on inspection of public records is not consistent with KRS 61.872(3) (b), as amended in 1992, its oral directions to Mr. Adkins to inspect the records as a precondition to receipt of copies was consistent with the letter of KRS 61.872(3)(b) specifically, if not the spirit of the Open Records Act generally.
In a response directed to this office following commencement of Mr. Adkins' appeal, Randal Good, Pike County Fiscal Court Executive Assistant, provided the following factual background:
On the evening of Thursday, September 28th, Mr. Adkins came into my office and filled out an open record request.
. . .
I showed the request to [County Judge/Executive Karen F.] Gibson and she said to tell Ernie he could come by the Finance Department and look at this and make whatever copies he wanted. I saw Ernie on a [sic] least two different occasions, after this, possibly three and one occasion was in the Finance Department. Ernie had also been at the Fiscal Court meetings. On October 9th at one of the court meetings Judge Gibson told Ernie that he could by the office and inspect the records. Ernie asks [sic] me if he would get paid for coming over during the day. I told him that he would probably have to take a personal day or vacation day.
I fully accept any responsibility of error in this matter. However, I also feel that with Ernie being an employee and he being in and out the courthouse as much as he is that he could have asked if they were ready for inspection. Ernie has never been denied access to our Finance Department or any other part of the courthouse, as to my knowledge, during our administration.
In closing, Mr. Good reiterated that the records identified in Mr. Adkins' request are available for inspection and copying.
Shortly after we received the fiscal court's response, a copy of which was furnished to Mr. Adkins, Mr. Adkins submitted a reply in which he challenged Mr. Good's narrative of the facts giving rise to the appeal. He explained that he believed that he was not "allowed to see anything until notified or denied (in writing!)." Further he objected to Mr. Good's statement that he had been notified on more than one occasion that the records were available for inspection. Finally, he questioned whether the Open Records Act requires him to use a vacation or personal day to conduct an on-site inspection during the fiscal court's regular office hours because those hours are identical to his work hours, and he is therefore effectively foreclosed from exercising his rights under the Act.
While we are not unmindful of the dilemma that the fiscal court's policy relative to inspection as a precondition to copying places Mr. Adkins in, we find that because he lives and works in the same county in which the public records he requested are located, KRS 61.872(3)(b) authorizes the Pike County Fiscal Court to require Mr. Adkins to inspect the records before furnishing him with copies. Unfortunately, this means that it may be necessary for him to use at least a portion of a vacation or personal day to briefly inspect, and then receive copies of the records. This decision should not be construed as an affirmation of the fiscal court's failure to comply with KRS 61.880(1) by responding to Mr. Adkins' request in writing, and within three business days. Nor should it be construed as approving Section (15) of its published open records policies requiring all requesters, including those who work or reside outside of Pike County, to conduct an onsite inspection as a precondition to receiving copies.
We begin by noting that the Pike County Fiscal Court's disposition of Mr. Adkins' request was procedurally deficient. KRS 61.880(1) establishes procedural guideline for agency response to an open records request, providing:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Based on Mr. Adkins' letter of appeal, and Mr. Good's reply, we find that although the fiscal court orally responded on October 9, advising Mr. Adkins that he could conduct an on-site inspection of the records, this response satisfied neither the requirement of a written response, nor the requirement that the response be issued within three business days. As we have so often noted, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the Pike County Fiscal Court to bear this observation in mind in responding to future open records requests.
Turning to the substantive issues in this appeal, we find that although Section (15) of the fiscal court's written policies on inspection of public records does not conform to the law as amended, as it relates to requesters residing outside of Pike County who precisely describe public records that are readily available within the agency, the fiscal court complied with the letter of KRS 61.872(3)(b) in directing Mr. Adkins to come to its offices to inspect the records before receiving copies. Section (15) currently provides:
The right to copyu [sic] a document is the result of having inspected a document and the official is not required to supply a copy as the result of a mail or telephone request. However, the official is encouraged to supply copies of specific documents as the result of a mail or telephone request if the copies are few, the documents are readily available and supplying the documents would not disrupt the normal operation of the office.
KRS 61.872(3)(a) and (b), on the other hand, states:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
To the extent that Section (15) fails to recognize the fiscal court's duty to mail, upon request, copies of precisely described public records that are readily available to persons who reside or work outside of Pike County, it is inconsistent with the cited provisions of the Act.
In construing KRS 61.872(3)(a) and (b), the Attorney General has observed:
The statute . . . 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 . . . . we believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records . . . . 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. [But] 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 the records and they are readily available within the agency.
96-ORD-186, p. 3; see also, 97-ORD-3; 99-ORD-63; 99-ORD-67. Because Mr. Adkins both lives and works in Pike County, he falls within the former category, and can be required to conduct an on-site inspection as a precondition to receipt of copies. The statute recognizes no exception for individuals whose work hours correspond to the public agency's business hours, and we are not at liberty to read such an exception into the statute. If he is truly committed to the goal of agency accountability through records access, Mr. Adkins may have to sacrifice a few hours of vacation or personal time in order to exercise his rights.
Nevertheless, early opinions of this office urge public agencies to "accommodate requesters whenever they can within the bounds of the efficient operation of their office." OAG 83-204, p. 4; compare OAG 86-24. "To require the requester to appear in person at the office of the agency" when his request is narrowly framed and the records can be easily accessed, "would not be more convenient to either party and would only inhibit the intended purposes of the Open Records Act. " Id. Mr. Good indicates that records responsive to Mr. Adkins' request have been compiled. Although the Pike County Fiscal Court is not legally obligated to do so, it may wish to consider mailing copies of these records to Mr. Adkins, since to do so will not disrupt the efficient operation of its offices, upon receipt of prepayment for those copies.
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 proceedings.