Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the responses of the Bell County Fiscal Court to the open records request of Doyle Carnes for records relating to a certain road in Roth Camp, Kentucky violated the Open Records Act. By letter, dated August 21, 2001, to the County Judge-Executive, Mr. Carnes requested the following records:
Request # 5 - Please Judge Jones provide me with the KRS Law that said road is not county road no longer.
Request # 6 - Please Judge Jones provide me with the KRS Laws that clear state that Bell County Fiscal Court can not maintain said County Road.
Request # 7 - Please Judge Jones provide copies of true and legal records that Bell County Fiscal Court does not have the funds to maintain said County Road.
In his letter of appeal, Mr. Carnes asked this office to determine whether the agency's responses were in accord with the Open Records Act.
After receiving notification of Mr. Carnes' appeal and a copy of his letter of appeal, John H. Golden, Bell County Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Golden enclosed copies of several exchanges of correspondence between the parties relative to his requests and copies of minutes of the fiscal court in which the Roth Camp Road was discussed. Addressing the specific request for records, Mr. Golden advised:
Request # 5: Mr. Carnes should be advised that the County is not required to provide him with copies of law and further, there is no KRS that answers this question.
Request # 6: See response to request # 5 as it has the same response.
Request # 7: All county financial records are available to Mr. Carnes in the Bell County Treasurer's office and he has been informed that he may review these records at his convenience. Further, the Bell Fiscal Court has never asserted that it does not have the funds to maintain "said County road."
We are asked to determine whether the County's actions relative to Mr. Carnes' open records request violated the Open Records Act. For the reasons that follow, we conclude that the agency's actions were in substantial compliance with the Act.
We address first Mr. Carnes' requests # 5 for KRS that said road is no longer a county road and # 6 for KRS that states that Bell County Fiscal Court can not maintain said County road. In response to these requests, Mr. Golden stated that the County is not required to provide copies of statutes and further advised that there was no KRS that answered the questions posed.
The Attorney General has long recognized that a public agency is not obligated to conduct general research in response to an open records request. For example, in OAG 89-45, we held that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3. In 00-ORD-130, we concluded that the agency was not obligated to conduct legal research "by locating relevant statutes and regulations pertaining to the subject of the request." 00-ORD-130, p. 4. Moreover, in 99-ORD-35, while acknowledging that such materials may technically qualify as "public records" because they are "in the possession of or retained by a public agency, " we nevertheless concluded that their disclosure "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " and therefore could not be characterized "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4.
Accordingly, we conclude that County's response to requests # 5 and # 6 was proper and did not violate the Open Records Act. In addition, the County further advised Mr. Carnes that there were no statutes that answered his question. An agency obviously cannot provide copies of records that do not exist.
Mr. Carnes' request # 7 asked for copies of County records that show that the Fiscal Court does not have the funds to maintain Roth Camp Road. In response to this request, the County indicated that all county financial records were located in the County Treasurer's office and were available for Mr. Carnes' inspection at his convenience. Mr. Golden further stated that the Fiscal Court had never asserted that it does not have the funds to maintain the road.
Addressing this issue, if Mr. Carnes both resides and works in Bell County, he may be required to make an on-site inspection. If he works outside Bell County, the public agency would be in error in refusing to furnish him with copies of records that are precisely described and readily available within the agency. On this issue, the Attorney General has observed:
KRS 61.872(3)(a) and (b) states:
(3) A person may inspect the public records:
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 . . . . [w]e 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 describes the records and they are readily available within the agency.
96-ORD-186, p. 3.
A requester who both lives and works in the county where the records are maintained, falls within the former category, and can be required to conduct an on-site inspection as a precondition to receipt of copies. Mr. Carnes' requests and letter of appeal indicates his address is Arjay, Kentucky, which is located in Bell County. Thus, we conclude that the County's response to Request # 7 was proper and did not constitute a violation of the Open Records Act.
KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days after receipt of an open records request. It is unclear whether the agency timely responded in writing to Mr. Carnes' August 21, 2001 request. To the extent its response was outside this three-day requirement, its response was procedurally deficient.
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.
Doyle CarnesP.O. Box 84Arjay, KY 40902
Jennifer JonesBell County Judge/ExecutiveP.O. Box 366Pineville, KY 40977
John GoldenBell County AttorneyCourthouse Square3rd Floor CourthouseP.O. Drawer 220Pineville, KY 40977