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 Laurel County Fiscal Court subverted the intent of the Open Records Act, short of denial of inspection and within the contemplation of KRS 61.880(4), 1 in the disposition of Randy Skaggs's February 11, 2003 request for financial records relating to the dog warden's yearly compensation and the dog pound's yearly operational costs for fiscal year 2001-2002. For the reasons that follow, we find that although the fiscal court went beyond its statutory duty in compiling information that was responsive to the request, and creating a new record containing that information, the fiscal court is nevertheless obligated to furnish Mr. Skaggs with existing documentation that supports the information it compiled upon receipt of a reasonable copying fee, not to exceed ten cents per page, 2 and postage charges.
On February 11, Mr. Skaggs requested that the Laurel County Fiscal Court mail him copies of records identified as follows:
(1) financial records or documentation indicating, referring to or pertaining to the " dog warden's " yearly compensation:
a. the dog warden's weekly or monthly salary or compensation plus a total indicating their complete and combined annual monetary compensation (we need either copies of cancelled checks - including check number and date issued - or a computer readout of the employee's payroll records - including check number and date issued, etc.) for the entire fiscal year of 2001-2002.
(2) financial records or documentation indicating, referring to or pertaining to the " dog pound's yearly operational costs:
a. the amount of money paid out by the county or that it spent altogether on the operation of its own dog pound or either paid to another county, individual or organization for the usage of their dog pound or kennels for the entire fiscal year (including a comprehensive tally and categorical itemization of those yearly expenditures if county owned and operated); we need either copies of cancelled checks, receipts, appropriation ledgers or specific and verifiable bookkeeping entries showing payment (which would also include individual check numbers and dates written) by the county for the year-round operation of its own dog pound or for payments made to another county, individual or organization for the services of a dog pound for the entire fiscal year of 2001-2002.
Having received no response to his request, he initiated this appeal on March 3, 2003. Given the volume of open records submitted by Mr. Skaggs on March 3, the Attorney General invoked KRS 61.880(2)(b)3 and extended the 20 working day time limit for issuing his decision by an additional 30 working days.
By letter dated March 20, 2003, Laurel County Judge/Executive Lawrence Kuhl provided Mr. Skaggs with "a summary of expenses from the Laurel County Fiscal Court budget for 2001/2003, concerning expenses for animal control procedures which indicate Laurel County, Kentucky spent a total of $ 86,701.93 during the 2001/2003 fiscal year for animal control." Judge Kuhl explained that his office "does not have possession of the cancelled checks for the expenses incurred and paid as set out in the summary of the budget since the bank does not furnish the Judge's office with those records." The attached summary, confirming expenditures in the amount of $ 86,701.93, was signed by Laurel County Treasurer Karen Montgomery and dated March 20, 2003.
The Kentucky Open Records Act imposes no obligation on a public agency to create a record that does not already exist in order to satisfy a records request. Instead, the Act contemplates records access by means of on-site inspection or receipt of copies through the mail. KRS 61.872(3) thus provides:
(3) A person may inspect the public records:
In construing the latter provision, this office has observed:
[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. The Laurel County Fiscal Court does not object that Mr. Skaggs' request was not framed with sufficient precision, and was apparently able to retrieve records containing the information sought. While the fiscal court went beyond its duties and obligations in creating a record containing the responsive information, and is to be commended for its attempt to accommodate Mr. Skaggs, we hold that the requirements of the statute are not fully discharged until existing documents substantiating that information, such as payroll records, receipts, ledgers, or bookkeeping entries, are disclosed. The Open Records Act establishes the right of access to nonexempt public records. Acknowledging that the fiscal court's efforts in this matter were meritorious, we nevertheless conclude that the fiscal court must retrieve the records from which the information was extracted, calculate its actual costs at a rate of ten cents per page for copies, plus postage, notify Mr. Skaggs of the costs, and mail copies of those records to him upon receipt of this amount.
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
Lawrence KuhlLaurel Co. Judge/ExecutiveLaurel Co. Courthouse 101 S. Main St., Room 204London, KY 40741
Elmer Cunnagin, Jr.Laurel Co. AttorneyLaurel Co. Courthouse101 S. Main StreetLondon, KY 40741-2300
Footnotes
Footnotes
1 KRS 61.880(4) provides as follows:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 In 01-ORD-136, this office affirmed the reasonableness of a ten cents per page copying charge.