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 response of the Office of the Muhlenberg County Judge Executive to the open records request of John Hobgood violated the Open Records Act. We conclude that the agency's response was in substantial compliance with the Act.
By letter dated August 21, 2001, Chris Logsdon made the following open records request for copies of the following documents:
5. A listing of all gasoline charge cards issued to Muhlenberg County government and the names of the individual(s) which carry said cards, if any.
6. Copies of all checks issued to pay for all travel expenses from the day the Judge Executive assumed office to present date.
7. Copies of all construction permits associated with the establishment of the Merle Travis/Coal Community establishment behind the Muhlenberg County 911 Center, to include all plumbing and water permits.
8. Copies of all correspondence including any citations or notices of non-compliance associated with the construction and plumbing associated with the Merle Travis home site/Coal Community.
9. Copies of all reimbursement checks for the Rails to Trails project.
By letter dated September 6, 2001, Rodney Kirtley, Muhlenberg County Judge Executive, responded to Ms. Logsdon's request by advising her that his office would grant her access to the requested records at the earliest convenience. Responding to some of the specific requests, Judge Kirtley explained:
Item # 1 - you are welcome to have access to any of my expense forms that you wish. Most of my travel expenses are due to Governor Patton's House Bill 810 which was passed by the House of Representatives.
Item # 3 - the only credit card issued in the name of Muhlenberg County government is Wal-Mart. This is the only way any entity is able to have a charge account with them. I have attached hereto a listing of every Muhlenberg County government department that has been issued a Wal-Mart card. As you will notice, the cards designated for the Landfill, Fiscal Court, and Judge Executive's office have never been used. I personally have never had any credit card or any sort of kind connected to Muhlenberg County government.
Item # 4 - no long distance telephone cards have ever been issued to Muhlenberg County government.
Item # 5 - no gasoline charge cards have ever been issued to Muhlenberg County government.
Item # 7 - no construction permits were required to establish the Merle Travis/Coal Community (Paradise Park) and neither water or plumbing have been installed there.
Item # 8 - We have not received any citations, notices, or letters of non-compliance associated with the Merle Travis/Coal Community (Paradise Park).
Item # 9 - Copies of all reimbursement checks for the Rails to Trails project are attached hereto.
If you still necessitate the other records mentioned in your request, according to the opinion of the Attorney General's office, we can provide you access to those records in a legitimate time frame.
In his letter of appeal, John Logsdon, Chairman, Muhlenberg County Democratic Party, on behalf of the Special Projects Committee of the Muhlenberg County Democratic Party Executive Committee, asked this office to review the response of the Office of the Muhlenberg Judge Executive in "denying the request for travel records and expenses.
After receipt of Notification of the appeal and a copy of the letter of appeal, Judge Kirtley provided a response to the issues raised in the appeal. Addressing the records at issue, he explained, in relevant part:
In response to paragraph 1 (b), nine items were requested from the original request. Items 3, 4, 5, 7, 8, and 9 were responded to in the letter dated Sept. 6, 2001. The reason for the extended time for items 1, 2, 6 were explained in the first paragraph of the same response dated Sept. 6, 2001 to requester, Ms. Logsdon.
In my opinion, there has not been a denial of information to the requester. I advised Ms. Logsdon she is welcome to view our records, but we will require reasonable time to make these records available to her. I have telephoned her to set a time to view the records. However, she was not available and I left a voice mail for her.
We are very proud of our records and will be glad to share them with anyone requesting them, however, due to limited staff and limited storage space for these records, we feel ample time must be allowed to locate and gather several years worth of reports, statements, cancelled checks, etc. as requested.
We are asked to determine whether the actions of the Office of the Muhlenberg County Judge Executive in response to Ms. Logsdon's open records request violated the Open Records Act. For the reasons that follow, we conclude that the agency's responses, although procedurally deficient, were in substantial compliance with the Act.
The only records requests at issue in this appeal are the travel and expense records asked for in numbered requests # 1, # 2, and # 6. 1 In its original response, the agency advised that to provide all the records Ms. Logsdon requested would be a monumental task and would involve several days or possibly weeks of work, but it would provide "access" to those records "in a legitimate time frame. " In its response to the letter of appeal, the agency advised that she was welcome to view the records, but it would require reasonable time to make the records available to her. The agency indicated it had left this message to Ms. Logsdon in her voice mail. Thus, there was not a denial of access to these records.
The response did indicate that the agency would provide the records within a "legitimate time frame. " This response was procedurally deficient in that it did not set forth a time certain in which the records would be made available for inspection.
The Open Records Act requires that, if the delay is to be in excess of three working days after an open records request has been made, the agency is required to immediately notify the requester and provide a detailed explanation of the cause for further delay and give a place, time and earliest date on which the public record will be available for inspection. KRS 61.872(5).
In the instant case, the Office of the Muhlenberg County Judge Executive's response to Ms. Logsdon failed to provide a time and the earliest date on which the records would be available for inspection. This portion of the agency's response was procedurally deficient and inconsistent with the requirements of KRS 61.880(1) and KRS 61.872(5). The response should have notified her of the place, time, and earliest date, she could inspect the records. This inspection should be within a reasonable time. In addressing the issue of "reasonable time, " in 01-ORD-140, p. 4, this office has noted:
Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
If the records have not already been made available for Ms. Logsdon's inspection, the agency should provide her with a place, time, and earliest date, to be within a reasonable time, in which she may inspect the records.
Finally, if a requester both resides and works in the same county, she may be required to make an on-site inspection. If she works outside the county, the public agency would be in error in refusing to furnish her 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.
Thus, 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. Ms. Logsdon's request indicates her return mailing address is Greenville, Kentucky, which is located in Muhlenberg County. Thus, the Office of the Muhlenberg County Judge Executive requiring Ms. Logsdon to make an on-site inspection of the requested records was proper and did not constitute a violation of the Open Records Act.
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.
John HobgoodP.O. Box 772Greenville, KY 42345-0772
Rodney KirtleyMuhlenberg County Judge ExecutiveMuhlenberg County CourthouseP.O. Box 137Greenville, KY 42345
Darris RussellMuhlenberg County AttorneyP.O. Box 302Greenville, KY 42345
Footnotes
Footnotes
1 The agency's responses to numbered requests in # 3, # 4, # 5, # 7, # 8, and # 9, either provided copies of the requested records or affirmatively advised that the requested records did not exist. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find that the actions of the agency in this regard were in accord with the requirements of the Open Records Act.
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