Request By:
Mike Swartz
P.O. Box 39
Olympia, KY 40358Walter Shrout
Bath County Judge/Executive
P.O. Box 39
Owingsville, KY 40360-0039Kim Price
Bath County Attorney
P. O. Box 1189
Owingsville, KY 40360-1189
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of Bath County Judge/Executive violated the Open Records Act in the disposition of Mike Swartz' open records request to inspect and copy certain records related to audits and purchase documents of the county. For the reasons that follow, we conclude that the Office of Bath County Judge/Executive's subsequent response advising Mr. Swartz that the requested records are available for his inspection was in substantial compliance with the Act.
In his letter of appeal, dated February 6, 2006, Mr. Swartz stated that he was appealing the refusal of the Bath County Judge/Executive to provide him copies of public records relating to audits and purchase documents. He indicated that he had attempted to hand-deliver a copy of his request that morning to the Office of the Bath County Judge/Executive and the Bath County Judge/Executive had refused to accept it and that he received no written response to his request. 1
Along with his letter of appeal, Mr. Swartz attached a copy of the open records request at issue. The request, dated February 6, 2006, requested to inspect and copy the following documents:
a. Audit Report 2003, 2004, 2005 All supporting documents, schedules, attachments
b. FEMA Receipts and expenditures for 2003, 2004, 2005
c. Any property county has bought in 2003, 2004, 2005 and who it was bought from.
After receipt of notification of the appeal and a copy of the letter of appeal, Walter Shrout, Bath County Judge/Executive provided this office with a response to the issues raised in the appeal. In his response, Judge Shrout advised, in relevant part:
In regard to the request Mike Swartz made on February 6, 2006. He came in asking for some information which I told him it would be ready in three days. Mr. Swartz did not return to pick up the information. He said I asked him to leave the office which is not true. Mr. Swartz had a paper he wanted me to sign which I didn't. When I refused to sign his paper he turned and left without saying a word.
With respect to Mr. Swartz' request for the audit reports, Judge Shrout advised that those reports "are available on the web site and are available to the public to review in the Judge's Office at any time;" With respect to the request for FEMA receipts and expenditures, he advised that "[w]e have a filing cabinet full of FEMA records which have been audited with no findings related to any FEMA projects. These records are also available for anyone to view in the Judge's Office;" Addressing the request for property records, he advised that "[a]ll property transactions done by the county are public record in the County Clerk's Office."
For the reasons that follow, we find that the actions of the Office of the Bath County Judge/Executive relative to the open records request of Mr. Swartz were substantively correct and did not violate the Open Records Act.
First, we address Mr. Swartz' complaint that the agency refused to accept the open records request. He asserts that he attempted to hand deliver his written request to the Bath County Judge/Executive, and he refused to accept it and asked him to leave. Judge Shrout counters that Mr. Swartz came in asking for information and was told it would be ready in three days, and he did not return to pick it up. Judge Shrout indicated that Mr. Swartz sought to require him to sign for the request which he refused to do, and Mr. Swartz turned and left without saying a word. He denied that he asked Mr. Swartz to leave.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
The record on appeal does not contain sufficient information concerning the events that occurred during the meeting between Mr. Swartz and the Office of the Bath County Judge/Executive regarding the attempted delivery of Mr. Swartz' written request for this office to conclusively resolve that factual discrepancy. See 05-ORD-153. Accordingly, we make no finding on this issue but make the following observations.
KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
A person could properly hand deliver an open records request to a public agency, but there is no requirement in the Open Records Act that requires a public agency to sign for receipt of a request. Thus, a refusal to sign the request would not violate the Act. However, a refusal to accept a tendered open records request would be a violation of the Act. See, Baker v. Jones , Ky. App., S.W.3d (2006), 2 where the court held that delivery of an open records request to the office of the mayor was sufficient to trigger her obligation to comply with the requirements of the Open Records Act. In reaching this conclusion, the court stated: "To hold otherwise would be tantamount to encouraging our government officers to 'bury their heads in the sands' to public matters with which they are charged." As noted above, it is unclear what actually occurred when Mr. Swartz attempted to deliver his request, but apparently he did not leave his request with the agency. If Mr. Swartz had left his written request with the public agency, it would have been required to respond to the request in writing within three business days after its receipt as required by KRS 61.880(1).
The Bath County Judge/Executive's supplemental response to this office advised that the records Mr. Swartz is seeking are available for inspection in his office or the county clerk's office. He further advised that he told Mr. Swartz that the information he sought would be ready for his inspection in three days, and Mr. Swartz did not return to pick up the information. KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
(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 KRS 61.872(3)(a) and (b), the Attorney General has observed:
The statute . . . contemplates records access by one of two means: Onsite 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 . . . . [W]e believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records . . . . 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. [B]ut 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.
96-ORD-186, p. 3; see also 97-ORD-3; 99-ORD-63; 00-ORD-211; 01-ORD-225. Mr. Swartz' mailing address on his letter of appeal indicates that he resides in Bath County and can therefore be required to conduct an onsite inspection as a precondition to receipt of copies. Accord, 97-ORD-12 (holding that if an applicant resides or works in the county where the records are maintained, the agency is not required to honor a request for copies until the applicant has inspected the records). Accordingly, Mr. Swartz would be entitled to conduct an on-site inspection of the requested records during the regular business hours of the public agencies.
Documentation presented by both parties indicates certain tension between them. Many of the open records issues appear capable of resolution by cooperation between the parties. Accordingly, the parties should consult and mutually cooperate to resolve any differences and misunderstandings related to the records sought.
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 matter was not ripe for review at this stage, because three working days had not elapsed, since the date Mr. Swartz asserts he attempted to tender his open records request, in which the public agency would have been entitled to respond in writing. KRS 61.880(1). However, the subsequent response submitted to this office by the Office of the Bath County Judge/Executive raised a number of issues relative to compliance with the Open Records Act which we now address. 99-ORD-225
2 Baker v. Jones is a nonfinal opinion.