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 Perry County Fiscal Court violated the Open Records Act in the disposition of Randy Skaggs' July 9, 2001, request for copies of various records documenting Perry County's compliance with Kentucky's animal control statutes, including KRS 258.192, for fiscal year 2000-2001. Based on this office's decision in 99-ORD-63, and in particular the discussion at pages two through four, we affirm the county's disposition of Mr. Skaggs' request. A copy of 99-ORD-63 is attached hereto and incorporated by reference.
On July 9, Mr. Skaggs requested that Perry County mail him copies of information and records identified as follows:
1. records or documentation indicating, referring to or pertaining to the "dog warden" :
2. records or documentation indicating, referring to or pertaining to the " dog pound ":
(3) records or documentation indicating, referring to or pertaining to the county's application for " financial help ":
On August 28, 2001, Perry County notified Mr. Skaggs that because he had failed to precisely identify the records he wished to access by receipt of copies through the mail, and because records that might be responsive to his request were not readily available with the agency, the county would not honor his request for copies by mail, but would permit him to inspect its records during regular office hours. 1 This appeal followed.
In 99-ORD-63, this office analyzed the propriety of the Breathitt County Clerk's disposition of a vaguely worded open records request for "any and all" records relating to a particular subject. The county clerk declined this request, but agreed to permit the requester access to records in his custody by means of on-site inspection. We affirmed the county clerk's position, reasoning that the requester had not satisfied the requirements of KRS 61.872(3)(b), and was therefore not entitled to receive copies of public records through the mail. As noted at page two of that decision, KRS 61.872(3) establishes guidelines for records access by providing:
(3) A person may inspect the public records:
In construing this provision, we observed:
The Open Records Act 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. 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.
97-ORD-46, p. 3. As in 99-ORD-63, Mr. Skaggs resides and has his principal place of business outside the county in which the public records are located. He therefore satisfies the first requirement of KRS 61.872(3)(b). However, before Mr. Skaggs can compel Perry County to mail him copies of public records, he must "precisely describe[]" those records, and they must be "readily available within the public agency. " As we noted at pages three and four of 99-ORD-63:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail. In construing KRS 61.872(3)(b), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
. . .
The third requirement (that the records be "readily available within the public agency" ) permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . . , but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
99-ORD-63, p. 3, 4.
Here, as in 99-ORD-63, Mr. Skaggs fails to describe the records he wishes to access by receipt of copies through the mail in definite, specific, and unequivocal terms, and therefore fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, they cannot be characterized as records that are readily available with the offices of the Perry County Fiscal Court. This being the case, Perry County may require him to conduct an on-site inspection of the records prior to furnishing him with copies of the records. Having extended an offer to Mr. Skaggs to conduct an on-site inspection, the Perry County Fiscal Court fully discharged its duties under the Open Records Act. Accord, 99-ORD-210; 00-ORD-75; compare, 97-ORD-46; 98-ORD-103.
As an alternative to conducting an on-site inspection, Mr. Skaggs may wish to consider resubmitting an open records request to Perry County in which he describes the records sought in definite, specific, and unequivocal terms. Assuming all other conditions are met, the burden will then shift to Perry County to furnish him with copies of the records by mail.
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.
Randy SkaggsP. O. Box 1Webbville, KY 41180
Denny Ray NoblePerry County Judge/ExecutiveP. O. Drawer 210Hazard, KY 41701
Lanny CombsPerry County AttorneyMain Street, CourthouseP. O. Box 1104Hazard, KY 41702
Footnotes
Footnotes
1 Perry County's response was not issued within three business days of receipt of Mr. Skaggs' request as required by KRS 61.880(1). Notwithstanding the county's view that it was not obligated to mail Mr. Skaggs copies of the records because the request was not framed with sufficient precision, Perry County was not relieved of its statutory duty to make a timely written response.
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