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 Madison County Judge/Executive, Treasurer, and Planning and Development Administrative Official violated the Open Records Act in the disposition of Charles W. Riddell's August 14, 2001 1 records request. For the reasons that follow, we find that although these officials provided Mr. Riddell with information they deemed responsive to his request, in the form of a letter prepared by Planning and Development Administrative Official Duane S. Curry and dated August 24, 2001, they did not fully discharge their duty under the Open Records Act by affording him access to records confirming the accuracy of the information provided or, alternatively, advancing any argument in support of the decision to deny him access to these records.
In his August 14 records application, Mr. Riddell requested access to "Treasurer's receipts with building permit numbers assigned, amount and date paid for the building permit, the electrical permit number, amount and date paid, electrical inspection fee amount and date paid" for each of nineteen properties identified by certificate number, name, and address, and the "Treasurer's receipts on the date and amount paid for building permit fees and electrical inspection fees" on eighteen properties identified by permit number, name, and address. In addition, Mr. Riddell requested access to building permit numbers and electrical permit applications for two other properties identified by name and location, and two county ordinances relating to electrical inspection fees and waiver of moving fees for mobile homes.
In the August 24 response directed to Madison County Judge/Executive Kent Clark, and later transmitted to Mr. Riddell, Mr. Curry advised that his "staff could not find where this office generates a public document that would contain all of the exact information Mr. Riddell . . . requested," noted that much of the information contained in the records requested was previously supplied to Mr. Riddell in response to his January 23, 2001 and July 2, 2001 open records requests, and generated a summary of the information, apparently extracted from existing records, in order to satisfy his August 14 request. With reference to the remainder of Mr. Riddell's request, Mr. Curry provided narrative answers and a copy of the only existing responsive ordinance. He explained that although no ordinance exists authorizing waiver of moving permit fees for existing mobile homes, "[t]here have been occasions where the fees have been waived either due to the owner's financial situation, extenuating circumstances, or farm exemptions." Dissatisfied with the response of these officials, and after expending nearly two years' effort seeking other avenues of review of their actions, Mr. Riddell initiated this appeal in an attempt to verify the accuracy of the information provided through inspection of existing public records.
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 Madison County officials to whom Mr. Riddell's January and July 2001 requests were directed were apparently able to retrieve records containing the information they believed he sought, and furnished those records to him. Having reviewed those records, Mr. Riddell uncovered what he characterized as a number of discrepancies, thus necessitating his August 2001 supplemental request. In an attempt to resolve the matter, the officials generated a summary of the information still in dispute and provided Mr. Riddell with a copy. While the Madison County officials went beyond their duty in creating this record, we find that the requirements of the statute are not fully discharged until Mr. Riddell is afforded an opportunity to inspect existing documents substantiating that information.
The Open Records Act establishes the public's right of access to nonexempt public records. See KRS 61.872(1) ("All public records shall be open for inspection by any person, except as provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right") and KRS 61.872(2) ("Any person shall have the right to inspect public records" ). Mr. Riddell did not request the creation of a summary of information in his August 14 records application. Instead, he requested access to reasonably described public records containing information that might resolve discrepancies found in records already produced.
In interpreting the provisions cited above, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. Thus, in OAG 76-375 we held that if an applicant cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . ." OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the applicant asserted the right "to inspect the . . . documents during the regular office hours of the department. . . ." OAG 81-198, p. 4. The Attorney General concluded that the applicant had "not made any demand on [the] agency which is beyond the scope of the Open Records Law." Id.
Echoing these opinions, in 1990 we held that the Rowan County Clerk erred in denying a request for equally broad categories of information for a ten-year period. Recognizing that the applicant had requested information, rather than to inspect reasonably identified records, this office nevertheless held that the clerk's response "should have stated that while Open Records provisions do not require a public agency to compile information [to conform to the parameters of a given request], records that might yield the information sought would be made available for inspection during normal office hours. " OAG 90-19, p. 3. In a similar vein, in 97-ORD-6 the Attorney General reaffirmed the principle that "public agencies are not required to compile information to satisfy . . . a request, . . . [but] agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 4 (emphasis added). "Unreasonable restrictions upon inspection may not be imposed." OAG 89-81, p. 4.
The Madison County officials to whom Mr. Riddell's August 14 request was directed do not advance any argument in support of denial, or partial denial, of his right to inspect the records identified in that request. If, however, those records contain both excepted and nonexcepted material, the officials may separate the excepted and make the nonexcepted material available for inspection, after articulating, in writing, the statutory basis for withholding that information per KRS 61.878(4) 2 and KRS 61.880(1) 3. However, "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4. In order to fully discharge their duty under the Open Records Act, the Madison County Judge/Executive, Treasurer, and Planning and Development Administrative Official must, within three business days of receipt of this decision, permit Mr. Riddell to inspect the records identified in his request in their entirety, or separate the excepted material and make only the nonexcepted material available for inspection, subject to the requirements of KRS 61.878(4) and 61.880(1). 4 They cannot deny his right of inspection, place restriction on the exercise of his right to inspect, or otherwise relieve themselves of their duty by providing him with a summary of information they believe he seeks. While their intentions in attempting to find an alternative production process may have been good, the Open Records Act ultimately invests the applicant with the right to inspect all nonexempt public records that may contain the information he seeks.
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.
Distributed to:
Charles W. Riddell1503 Lexington RoadRichmond, KY 40475
Kent ClarkMadison Co. Judge/ExecutiveMadison Co. Courthouse101 West Main StreetRichmond, KY 40475-1442
Duane S. CurryAdministrative OfficerMadison Co. Planning & Development Office321 N. Madison Ave., Suite BRichmond, KY 40475
Brent BaldwinMadison Co. Treasurer Madison Co. Courthouse101 West Main StreetRichmond, KY 40475-1436
Marc RobbinsMadison Co. Attorney116 West Main Street, Suite DRichmond, KY 40475
Footnotes
Footnotes
1 Although nearly two years have elapsed since Mr. Riddell submitted his request, the Open Records Act establishes no statutory bar to belated appeals. Compare KRS 61.846(2) (requiring a complainant to appeal an agency's denial of, or failure to respond to, an open meetings complaint within sixty days).
2 KRS 61.878(4) provides, "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
3 KRS 61.880(1) provides:
"Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
4 Because Mr. Riddell resides in Madison County, and there is no evidence in the record that his principal place of business is outside of Madison County, he may be required to inspect the records identified in his request as a precondition to obtaining copies. KRS 61.872(3)(b).