Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented here is whether the Russellville Police Department violated the Open Records Act in its disposition of Janice and Bryan Reinhardt's requests for certain arrest records and other requested information. For the reasons that follow, we conclude that the Department's responses did not violate the Act.
On December 1, 2003, Jim Pendergraff, Chief of Police, Russellville Police Department, received a request from Bryan and Janice Reinhardt requesting certain arrest records and inventory lists of seized property. By letter dated December 4, 2003, addressed to Janice Reinhardt, Chief Pendergraff advised in part:
I am in receipt of your letter dated November 26, 2003, in which you request records from the Russellville Police Department. The request does not specify if you want the records mailed to you or if you will pick them up at the police department. There is a fee of $ 3.00 per report, and if mailed, additional fees for mailing. If you choose to pick the records up in person, the records section is open Monday through Friday, 8:00am to 5:00pm. In either case, all fees will need to be paid in advance before any records may be released. The Russellville Police Department adheres to the state statutes as outlined in the Kentucky Revised Statutes detailing Open Records in KRS 61.870 to 61.884. Some of the records you have requested may be exempted from disclosure.
By letter dated July 5, 2004, Mr. Reinhardt submitted another request to the Russellville Police Department requesting the same or similar records.
By letter dated July 14, 2004, Chief Pendergraff advised Mr. Reinhardt that once the Department received the $ 4.00 fee for the records and mailing, the requested records would be mailed to him.
In his letter of appeal, Mr. Reinhardt asks this office to review the actions of the Department to determine if they were in violation of the Open Records Act.
After receipt of notification of the appeal and a copy of the letter of appeal, Chief Pendergraff provided this office with a response to the issues raised in the appeal. In his response, he advised in relevant part:
On Monday, December 01, I received correspondence from Bryan and Janice Reinhardt requesting copies of all arrest records and other documents. This letter was dated November 22, 2003 but had a postmark on the envelope of November 26, 2003. The return address on the envelope was listed to Bryan Reinhardt with an address of the Logan County Detention Center. November 26th was the Wednesday before the Thanksgiving holidays and our business offices were closed on November 27th and 28th. On December 04, 2003, I responded to the request by sending a letter to Janice Reinhardt outlining the procedure for picking up records at the Russellville Police Department and asked for clarification if she wanted the records mailed or if she would pick them up at the police department (copy of letter enclosed) . To the best of my knowledge the Reinhardt's have yet to come to the police department to pick up copies of the records and did not respond to the inquiry about mailing the records. I did not receive any further correspondence from the Reinhardt's in December 2003.
On Monday, July 12, 2004 I received correspondence from Bryan Reinhardt again requesting records from our agency. The letter was dated July 05, 2004 and had a post mark on the envelope of July 06, 2004. The letter was received at the police department on Friday, July 09, 2004. I was not on duty the day the letter arrived and did not physically receive it until Monday, July 12, 2004. On Wednesday, July 14, 2004 I responded to the request by sending a letter to Bryan Reinhardt outlining the procedure for obtaining the records through the mail and specifying the associated fees (copy of the letter enclosed) . Mr. Reinhardt did not specifically ask in his request that the records be mailed. I had no further word from Mr. Reinhardt until receiving the appeal notice from the Attorney General's office.
The Kentucky Revised Statutes states in 61.880(2)(a), "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect public records, the complaining party shall forward a copy of the written request and a copy of the written response denying inspection. " Both of the letters I sent to the Reinhardt's were not letters of denial, but were explanations outlining how records could be picked up at the police department and the process for receiving those documents via mail. Neither one of these letters was included in the packet I received from the Attorney General's Office.
We are asked to determine whether the actions of the Russellville Police Department violated the Open Records Act. For the reasons that follow, we conclude that the actions of the Department were proper and did not constitute a violation of the Act.
The responses of the Department were not denials of the requests. The December 2003 response advised Janice Reinhardt, one of the requesters, that she could either, come to the police department and pick up the records or they could be mailed to her and further advised her that in either case, all fees would have to be paid in advance before receipt of the copies. Chief Pendergraff stated that Ms. Reinhardt neither came to the police department nor responded that she wanted the records mailed to her. He also stated that he received no correspondence from the Reinhardts in December 2004.
KRS 61.872(3) establishes guidelines for records access by providing:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
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. Thus, Ms. Reinhardt was provided with the option to either come to the police department to receive the records or request the records be mailed to her. She exercised neither. Mr. Reinhardt, confined in the Logan County Detention Center at the time of this request, could have requested and received copies of the records by mail, upon prepayment for the records. Chief Pendergraff indicated he received no further correspondence from the Reinhardt's regarding this request in December 2003. Under these facts, we find no violation of the Open Records Act.
The same would apply to Mr. Reinhardt's July 2004 request. Chief Pendergraff, in his July 14, 2004 response, advised that copies of the requested records would be mailed to him, after receipt of the $ 4.00 fee for the records and cost of mailing. A public agency may properly require prepayment of the copying fee prior to mailing the requested documents. KRS 61.872(3); 95-ORD-105. Here, too, we find no violation of the Act.
A party aggrieved by this decision may appeal it by initiating an 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.
Bryan L. Reinhardt, #173109Northpoint Training CenterP.O. Box 479Burgin, KY 40310
James F. PendergraffPolice Chief104 S.W. Park SquareRussellville, KY 42276
Bob HedgesCity AttorneyP.O. Box 335Russellville, KY 42276