Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fayette County Clerk violated the Open Records Act in denying Rowan County attorney B. R. Salyer's January 14, 2005, request for online access to electronic records located on the County Clerk's website because Mr. Salyer is not a Fayette County attorney with whom the Clerk has a working relationship and because Mr. Salyer "could not rely on just the scanned records" to effectuate his stated purpose, namely, to determine clear title to real estate. For the reasons that follow, we find that the Fayette County Clerk violated the Open Records Act in failing to observe the fundamental premise of the Act, codified at KRS 61.872(1) and (2), that "[all] public records shall be open for inspection by any person" and that "[a]ny person shall have the right to inspect public records. "
In his January 14, 2005, request "to obtain online access to scanned public records maintained in [the Fayette County Clerk's] office" Mr. Salyer, whose offices are located in Morehead, Kentucky, explained that he represents a Fayette County resident who has retained him "to do title examinations for him to determine when a proposed purchase has a clear and marketable fee simple title." Mr. Salyer noted that in reviewing the Clerk's website, he discovered an online access link, including a log-in feature, but found "no information about how to obtain the account number and user ID." Upon inquiry, the Clerk advised Mr. Salyer that "scanned images are not available to the general public over the internet . . . [but] can be viewed in our office Monday thru Friday 8-4:30." Mr. Salyer was subsequently advised that online access is "limited to Fayette County attorneys."
In a response dated January 18, 2005, Fayette County Clerk Donald W. Blevins referenced KRS 61.872(3)(a) and (b) and the public's right to access public records by means of onsite inspection or receipt of copies through the mail, reminding Mr. Salyer that records of his office are available during regular business hours or by mail. Mr. Blevins also referenced KRS 61.874(2)(a) and the right of a noncommercial requester to designate the format in which he wishes to obtain records when those records are maintained in standard electronic and hard copy format, noting:
Our office cannot determine the noncommercial use of the records by having the records available on the internet. The attorneys in this county who have internet access have a working relationship with this office.
In closing, Mr. Blevins reminded Mr. Salyer that he "could not rely on just the scanned documents to determine a clear title. " Shortly thereafter, Mr. Salyer initiated this appeal, questioning the Fayette County Clerk's authority to restrict online access to Fayette County attorneys.
In supplemental correspondence directed to this office following commencement of Mr. Salyer's appeal, Mr. Blevins elaborated on his position. Relying on KRS 61.874(6), which provides that "online access to public records in electronic form . . . may be provided and made available at the discretion of the public agency, " he indicated that he merely exercised his discretion negatively in denying Mr. Salyer online access to electronic records of his office.
It is the decision of the Attorney General that although an agency may properly exercise its discretion either affirmatively or negatively in deciding whether to provide online access to electronic records, having exercised that option affirmatively relative to one or more requesters, it must exercise the option affirmatively as to all requesters who are willing and able to abide by the terms and conditions of online access established by the agency. In so holding, we are guided by the fundamental principle that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink v. Commonwealth, Ky., App., 902 S.W.2d 825, 828 (1994).
Implementing the clearly expressed legislative intent, this office has long disapproved disparate treatment of open records applicants. In an early opinion, the Attorney General recognized that access may be denied "according to the nature of the records, and not according to the person who is requesting the inspection or the state or suspected purpose of the inspection. " OAG 82-233, p. 3; OAG 89-76; OAG 92-30; 01-ORD-8. As noted, this position was confirmed by the Kentucky Court of Appeals in Zink v. Commonwealth, above, wherein the court opined:
Our analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next.
Id.
Applying this principle to an apparent incident of disparate treatment of an open records applicant, in OAG 90-50 this office determined that the City of Louisville was required to permit the applicant to use its reader-printer and cassette records to review records stored on 35 mm film and cassette tape inasmuch as the applicant, "his firm (and client) st[ood] in no different shoes than any other citizen in requesting to inspect public records. " Several years later, we held that the Boyd County Property Valuation Administrator improperly permitted some individuals, and not others, to inspect and obtain copies of tax maps, property assessment cards, and mapping cards, concluding that the PVA could not "release records, mask information, or provide copies based on the identity of the requester, " but must afford access to public records "uniformly and without reference to the identity of the requester. " OAG 92-30, p. 4. In 1996, the Attorney General held that an inmate requesting access to canteen price lists "st[ood] in the same shoes as any other requester under the Open Records Act" based on the rule that "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof." 96-ORD-209, p. 3, citing 94-ORD-20, p. 2. The inmate's "past criminal history" notwithstanding, he could not be subjected to disparate treatment. Finally, in 97-ORD-8, we held that the Lexington Fayette Urban County Government could not deny representatives of a chiropractic center the right to inspect records placed on a records counter "in order for citizens, insurance companies, and others to request copies" because LFUCG feared that these representatives would "monopolize" the records. At page 3 and 4 of that decision, we observed:
With regard to its right to inspect public records [a representative of the chiropractic center] stands in the same shoes as any other open records requester. KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person, except as otherwise 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." Subsection (2) of that provision states that "[a]ny person shall have the right to inspect public records. "
. . .
[Representatives of the center are] member[s] of the public and enjoy[] the same right of access as any other member of the public. This policy of disparate treatment violates the Open Records Law. The reports are available [for onsite inspection] to all or available to none.
(Emphasis added.) 1
In 1994, the Kentucky Open Records Act was amended to establish a third mode of access to public records. In addition to onsite inspection and inspection by receipt of copies through the mail, KRS 61.874(6) was enacted to permit online access. That statute provides:
Online access to public records in electronic form . . . may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements. 2
The parties to this appeal agree that discretion rests with the agency to decide whether to provide online access, but disagree on whether, once provided, the agency may exercise continuing discretion in denying certain open records applicants such access. Recognizing that KRS 61.874(6) authorizes the public agency to require the applicant to enter into a contract, license, or other agreement, the terms and conditions of which are established by the agency, we believe that an applicant who is willing and able to accept these terms and conditions must, consistent with the principle that the Open Records Act "is intended to grant any member of the public as much right to access to information as the next," Zink at 828, be afforded online access to the agency's electronic records. We find no support in the Act for distinguishing between individuals who have a working relationship with the agency and those who do not. In our view, KRS 61.874(4)(a) and (b), addressing open records requests made for commercial purposes and permitting public agencies to require certified statements of commercial purpose, afford sufficient safeguards to allay the Fayette County Clerk's concerns relative to commercial and noncommercial applicants. To hold otherwise would open the door to discriminatory records access practices.
While we understand and appreciate that online access to the County Clerk's electronic records does not insure a clear title, this particular concern has no bearing on our open records analysis. On this issue, the Attorney General has observed, "Disclosure of public records under the Open Records Act does not constitute a guaranty of the accuracy [or completeness] of all information contained therein." 97-ORD-183, p. 4; see also 99-ORD-148. Electronic records that are accurate or complete as to applicants residing within the county are no less accurate or complete as to applicants residing outside the county. A disclaimer appearing on the website or in the contract, license, or other agreement, or both, advising subscribers of the deficiencies in the posted electronic records, should adequately address this concern as to all applicants.
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.
Footnotes
Footnotes
1 This decision resulted from a dispute involving access to accident reports and the controversy surrounding the 1994 amendments to KRS 189.635 and KRS 61.870, et seq. That controversy does not alter the point of law for which we cite 97-ORD-8.
2 Given the discretionary nature of the statute relating to online access, the clerk may elect to remove these electronic records from his website entirely.