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 Magoffin 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 because Mr. Skaggs resides and has his principal place of business outside of Magoffin County, and because he precisely described the records he wished to access by receipt of copies through the mail, and because no proof has been presented that those records are not readily available within the Magoffin County Fiscal Court, the fiscal court must, pursuant to KRS 61.872(3)(b), mail Mr. Skaggs copies of the records identified in his request 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 Magoffin 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 11, 2003, Magoffin County Deputy Judge/Executive Donna Adams notified this office that Magoffin County Fiscal Court records "are open to anyone . . ." during regular office hours, Monday-Friday, 8:30 A.M. - 4:30 P.M., but explained that the fiscal court does "not have the staff or time to do the necessary research requested." It is the fiscal court's position that it is "in full compliance" with the Open Records Act as it pertains to the request filed by the Trixie Foundation through Mr. Skaggs. Respectfully, we disagree.
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 the guidelines for records access by providing:
(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. 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). That decision is, however, distinguishable insofar as Mr. Skaggs "precisely describes" the records he wishes to access by receipt of copies through the mail and the Magoffin County Fiscal Court has presented no proof that the records he seeks are not "readily available within the public agency. " As noted at page 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:
. . .
99-ORD-63, pp. 3, 4. In so holding, however, we noted that it is "incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." 98-ORD-103, p.6 quoting 99-ORD-63; accord, 99-ORD-67 (in the absence of proof that description of records was imprecise or that records could not be readily accessed, Trimble County Fiscal Court erred in refusing to honor request for copies of records relating to animal control and offering, as the only alternative, that the requester conduct an on-site inspection) .
It is the opinion of this office that Mr. Skaggs describes the records he wishes to access by receipt of copies through the mail in definite, specific, and unequivocal terms, thereby satisfying the second requirement of KRS 61.872(3)(b). The fiscal court has not presented proof that the records are not readily available within the agency, and given the fact that they consist exclusively of financial and operational records relating to the dog warden and dog pound for the last fiscal year, we can see no reason why the records would not be readily available if sound records management practices are being utilized.
Mr. Skaggs does not pose a series of questions requiring narrative answers or ask that the fiscal court compile information to conform to the parameters of a request. Compare 01-ORD-188 (attached). His request therefore does not require nonobligatory research. Instead it requires an obligatory search for records documenting compensation to the dog warden and financial and operational records of the dog pound for a period of one year. Under these circumstances, we find that the Magoffin County Fiscal Court subverted the intent of the Open Records Act in asserting that Mr. Skaggs must conduct an on-site inspection as a precondition to obtaining copies of the records he seeks. It is therefore incumbent on the fiscal court to immediately locate, retrieve, duplicate, and mail those records to Mr. Skaggs upon receipt of reasonable copying charges not to exceed ten cents per page, and postage charges. If the Magoffin County Court maintains no responsive records, it is incumbent on the fiscal court to immediately so notify Mr. Skaggs in writing.
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
Bill W. MayMagoffin Co. Judge/ExecutiveMagoffin Co. CourthouseP.O. Box 430Salyersville, KY 41465
Donald McFarlandMagoffin Co. AttorneyCourthouse, 1st FloorChurch StreetP.O. Box 464Salyersville, KY 41465
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.
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