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 Owen County Industrial Authority violated the Open Records Act in the disposition of Gerald T. Kemper's requests for certain Authority records. We conclude that the Authority's actions were proper and did not constitute a violation of the Act.
By letter dated November 21, 2002, Mr. Kemper submitted the following request to Frank K. Downing, Director of the Authority:
Enclosed please find:
I really do not need to review the files. All I need are copies of the following:
Please provide these documents pursuant to the open records law. If necessary, I will reimburse you for both the copies and postage.
By letter dated November 4, 2002, Mr. Downing acknowledged receipt of Mr. Kemper's October 24th request on October 31, 2002 and advised him that "most of the materials have gone to storage and will require a few days to retrieve."
In a follow-up letter, dated November 11, 2002, Mr. Downing informed Mr. Kemper that all the material requested was with Gary Derringer, Secretary/Treasurer of the Authority at his office at the Peoples Bank; Main St. Owenton," and that Mr. Kemper should contact him to arrange a time to review the files.
In a subsequent letter, dated November 27, 2002, Mr. Downing again advised Mr. Kemper that the records he requested "were available at Peoples Bank with Gary Derringer Sec. Treas. during regular business hours" and provided the telephone number to call Mr. Derringer to make an appointment.
On December 10, 2002, Mr. Kemper initiated the instant appeal asking this office to determine whether the actions of the Authority were in compliance with the Open Records Act.
After receipt of Notification of the appeal and a copy of the letter of appeal, Mr. Downing provided this office with a response to the issues raised in the appeal. In his response, Mr. Downing explained in part that the requested materials were maintained by Mr. Derringer, Senior Vice-President, Peoples Bank & Trust Co., in his capacity as Secretary/Treasurer of the Authority. He further explained that the requested materials contained nearly 200 pages and Mr. Kemper had been directed to make an appointment with Mr. Derringer to review the materials prior to copying. Mr. Downing indicated that Mr. Kemper had made two appointments, one he cancelled and one he did not show. Finally, Mr. Downing advised that Mr. Kemper's office was about 200 feet from Peoples Bank.
We are asked to determine whether the Authority's actions in response to Mr. Kemper's requests violated the Open Records Act. The issue presented in this appeal is whether the Authority violated the Open Records Act by requiring Mr. Kemper to inspect the requested records prior to receiving copies. For the reasons that follow, we conclude that the Agency did not violate the Act.
If a requester whose residence or principal place of business is in the county where the records are maintained, he can be required to conduct an on-site inspection as a precondition to receipt of copies. 99-ORD-151. The records at issue are maintained in Owenton, Owen County. Mr. Kemper's requests and letter of appeal indicates that his principal place of business is in Owenton, Owen County. Under this circumstance, the Authority may properly require him to conduct an on-site inspection of the records prior to furnishing him with copies of those records. If he had worked outside Owen County, the public agency would have been 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:
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.
Because Mr. Kemper's principal place of business is in the same county where the requested records are maintained, the Authority could properly require him to conduct an on-site inspection of the records prior to furnishing him with copies of those records. As noted above, the Authority indicated that the requested records contained nearly 200 pages. An inspection of the records prior to making copies could ensure that Mr. Kemper would not receive copies of records he did not want or incur unnecessary costs.
Moreover, in responding to Mr. Kemper's requests, the Authority advised him the requested records were in the custody of its Secretary/Treasurer at his office in the Peoples Bank & Trust Co., and were available for his inspection during regular business hours and directed Mr. Kemper to call him and arrange a time to review them. This was in accord with KRS 61.872(4), which provides that if an application for records is sent to someone who does not have custody or control of the requested records, the person who receives the application must notify the applicant of that fact and provide him or her with the name and location of the custodian of the records.
Accordingly, we conclude that the Authority's responses to Mr. Kemper's requests were 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.