Request By:
Aaron L. Wilson
101 Flintroy Court
Georgetown, KY 40324-1835Mary Kay Duncan
Owen County Clerk
135 W. Bryan Street
Owenton, KY 40359Charles E. Carter, Jr.
Owen County Attorney
P. O. Box 307
Owenton, KY 40359-0307
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 Owen County Clerk violated the Open Records Act in responding to the request of Aaron Wilson to inspect records relating to Mountain Island and James Herndon, et al., many of which date from the 1850s and 1860s and some spanning over a period of sixty years. For the reasons that follow, we conclude that the County Clerk properly responded to requests for records dating back to 1850s by advising requester that he could conduct an onsite inspection of the records during the agency's regular business hours.
By letter dated February 28, 2006, and hand delivered to the agency on the same date, Mr. Wilson requested to inspect the following records:
1. All documents bearing the names James Herndon, James Lewis Carroll, George Warren Carroll, Dolly M. Carroll, Susan Smith, Anna M. Smith, Mary Warfield, and any variants thereof;
2. The 1850 or 1853 Will and Testament of James Herndon;
3. The documents which pertain to the transfer of the 50-acre portion received by Joshua and Dolly Vinegar following their death, and the distribution of the proceeds from the sale to all the former slaves described in the Herndon will;
4. The 1853 inventory and appraisement prepared by Silas A. Hudson;
5. Security bonds posted by the neighbors of James Herndon;
6. The 1859 motion of Fanny Vinegar;
7. The 1860 map which shows the island divided into 21 lots and which was to be inherited by the devisees;
8. The "Arnold, Nat Lee, and Lucas L., 125 acres, R.J.W., Clk." Document;
9. The 1866 settlement with George W. Vinegar, attorney in fact and guardian for the 21 devisees;
10. The names and addresses of all people who have paid taxes for the 21 lots inherited by the devisees, or any recombination thereof, from 1856 to 2006;
11. All documents which relate to the transfer of ownership of any of the 21 lots inherited by the devisees, or recombination thereof.
In a letter, dated March 3, 2006, Mary K. Duncan, Owen County Clerk, responded to Mr. Wilson's request, advising, in relevant part:
The records are open for inspection during the regular business hours of 8:00 am to 4:00 pm on Monday, Tuesday, Thursday, and Friday. Hours for Saturday are 8:00 am to 12:00 pm. Closed on Wednesday.
There is a copy machine available for the public to use.
The following copies are records that the county clerk was able to locate from the request to inspect list of records. However there are some records listed that could not be located in the clerk's office.
Please note that all records located in our office are open for the public. If you have any questions regarding this matter, please contact the county clerk or staff member.
Myself and my chief deputy spent 1 - 1/2 days going thru every index and book that is in my record room.
In his letter of appeal, Mr. Wilson asserts that the county clerk did not properly respond to his request. He states that she required payment of $ 7.70 for copies of records, even though he had not requested copies and that she had refused to write down the steps she had taken in trying to find the missing items until after he had inspected the copies and asked twice to do so. He further asserts that several of the items the agency failed to produce are referenced as being of record in some documents she did produce and in Mountain Island in Owen County, Kentucky: the Settlers and Their Churches by James C. Bryant.
After receipt of notification of the appeal and a copy of the letter of appeal, Charles E. Carter, Owen County Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Carter explained:
On February 28, 2006 Aaron L. Wilson delivered his Open Records Request to the Owen County Clerk's Office. The Clerk and her Chief-Deputy immediately started researching records and making copies to respond to Mr. Wilson's request and did so in writing on March 3, 2006 but they had no address for mailing.
On March 4, 2006 Mr. Wilson came to the Owen County Clerk's Office and the response was provided to him along with copies of the documents that were located. He was apprised of the cost of the copies, never said he didn't want copies and the lady with him paid.
There was no intentional wrongdoing. This was the first Open Records Request by the Owen County Clerk and there was a misinterpretation about producing copies. The Clerk had no indication that Mr. Wilson was dissatisfied with their response or did not want copies.
The Owen County Clerk has prepared a second response to Mr. Wilson's request of February 28, 2006 which is attached. The Clerk and her staff will answer any questions and assist Mr. Wilson as needed for location of records in their office during regular business hours.
By letter dated, March 10, 2006, the County Clerk also provided this office with a response to the issues raised in the appeal. In her response, she acknowledged that there was a misunderstanding about producing copies, but "upon production of our answer to Mr. Wilson along with the copies he never said anything about not wanting the copies and the lady with him paid the costs." She further advised that she had no indication there was any problems with the response from Mr. Wilson, but that she had prepared a second response to his open records request to rectify any errors that were made in the agency's initial response.
In her second or amended response, to Mr. Wilson's February 28, 2006, request, dated March 10, 2006, the County Clerk addressed the eleven enumerated groups of records in the request advising, in relevant part:
The records for number 1, number 2, number 3, number 5, number 9 and number 11 are in the Owen County Clerk's Office.
More information is needed before it can be verified if the records are in the Owen County Clerk's Office for number 4, number 6, and, and number 8.
The record for number 7 is not in the Owen County Clerk's Office and is not known where it could be located.
The records for number 10 are not in the Owen County Clerk's Office. The Owen County Tax Roll is located in the Property Valuation Office, Lee Cochran, Room 6, Owen County Courthouse.
By letter dated March 13, 2006, Dorothia L. Wilson provided this office with a reply. She advised that she was the lady referred to in the County Clerk's March 10, 2006, response and that the County Clerk said she needed seven dollars and seventy cents for the copies, and Mr. Wilson told her he had only requested to inspect records. Ms. Wilson stated that when the County Clerk did not reply, she paid the money to comply with the County Clerk's request explaining, "[w]e were from out of town and I did not want to draw any attention."
With the exception of the misunderstanding related to the copies, we conclude that the actions of the Office of the Owen County Clerk were in substantial compliance with the Open Records Act.
To begin, the County Clerk's response to Mr. Wilson's request cannot properly be characterized as a denial. KRS 61.872 governs access to public records. Pursuant to KRS 61.872(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. (Emphasis added).
In other words, the Open Records Act contemplates access to records "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. " 03-ORD-067, p. 4.
At issue in 03-ORD-067 was whether the Jefferson County Clerk had subverted the intent of the Act in his disposition of a request for the name and zip code associated with a specified address. In determining that the clerk's response was substantively correct, this office observed that a county clerk's office "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided." When a requester provides the clerk with this precise information, "the clerk is required to mail [the requester] a copy of the deed upon prepayment of reasonable copying charges not to exceed ten cents per page and postage charges." 03-ORD-067 at page 5. If the requester is unable to provide this precise information, however, it is not incumbent on the clerk "to make extraordinary efforts to identify, locate, and retrieve the record in order to copy and mail [it] to the [requester] ." 97-ORD-46, supra, p. 3 (Emphasis added); 03-ORD-067, supra. This conclusion is both consistent with the requirements of KRS 61.872(3)(b) and a logical extension of the principle that "[public] agencies and employees are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time," OAG 76-375, p. 4; 03-ORD-067.
In the instant appeal, Mr. Wilson, although from outside of Owen County where the records are kept (mailing address Georgetown, Scott County, Kentucky), did not request receipt of the requested records by mail. He requested to inspect the records. Thus, under authority of KRS 61.872(3)(a), he would be entitled to inspect the records during the regular hours of the County Clerk's Office. Although not required to do so, the County Clerk advised that she and her chief deputy clerk took extraordinary steps of searching for the requested records over a period of 1 - 1/2 days and located and made copies of those records which were located. The County Clerk has acknowledged that the office mistakenly made the copies before asking Mr. Wilson if he wanted copies and we will not belabor this point. This was inconsistent with the requirements of the Open Records Act. A public agency cannot require a requester to pay for copies of records that he has not asked for. See 05-ORD-008 (agency erroneously interpreted request to inspect public records as a request for copies of those records and improperly attempted to impose reproduction charges on him in advance of producing the copies.) However, if a requester asks for copies of records, an agency can require prepayment for the copies and postage charges prior to delivery by mail or providing the requester with the requested copies at pickup. KRS 61.872(3)(b).
The County Clerk, in her second or amended response to Mr. Wilson's February 28, 2006 request, advised that the records for requests number 1, number 2, number 3, number 5, number 9 and number 11 were available for inspection in the County Clerk's office; that more information was needed for requests number 4, number 6, and number 8, before it could be verified if the records were in the County Clerk's office; that the record for number 7 was not in the County Clerk's office and it was not known where it could be located; and that records for number 10 were not in the County Clerk's office. Mr. Wilson was further advised that the Owen County Tax Roll was located in the Property Valuation Office, Lee Cochran, Room 6, Owen County Courthouse.
We find that the County Clerk's amended response was consistent with the requirements of the Open Records Act and mitigated any deficiencies in the initial response. First, she advised Mr. Wilson which requested records were available for his inspection. 40 KAR 1:030, Section 6, provides "[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since the records for requests number 1, number 2, number 3, number 5, number 9 and number 11 have been available for Mr. Wilson's inspection, the issue as to access to those records is moot and no decision will be rendered in that regard.
Secondly, the amended response advised Mr. Wilson that more information was needed for record requests number 4, number 6, and number 8, in order for the County Clerk's office to determine if they were located in the County Clerk's office. This was not a denial to inspect. The County Clerk advised Mr. Wilson in writing that a search revealed no records responsive to his requests 4, 6, and 8, as framed and requested further information in order to assist him in locating these records; nothing more is required. 05-ORD-241. The County Clerk has offered to search further if Mr. Wilson could provide additional information that might assist her in locating any responsive records. To clarify, a request for clarification or more precise information is not properly characterized as a denial. 05-ORD-137; 04-ORD-198; 04-ORD-193; 03-ORD-067. Under these facts, we find no violation of the Open Records Act.
Thirdly, the amended response affirmatively advised Mr. Wilson that the record requested in request number 7 (the 1860 map) was not in the County Clerk's office, and it was unknown where a copy of the record could be found. As we observed in 03-ORD-205, this office "has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist." Id., p. 3, citing 93-ORD-134; 99-ORD-98. An agency discharges its duty under the Open Records Act by affirmatively so stating. 03-ORD-205, p. 3, citing 99-ORD-150. In his letter of appeal, Mr. Wilson indicated he had met with a member of the Owen County Historical Society who confirmed the existence of requested item no. 7. If he has information that would assist in locating the record he should provide that information to the County Clerk. We find no violation in this response.
Fourthly, the amended response advised that the tax records requested in request number 10 were not in the County Clerk's office and provided him with the name and address of the agency that might have the requested tax records. KRS 61.872 (4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
The County Clerk's response notified Mr. Wilson that the requested tax records were not in her office and advised him that the Owen County Tax Roll was located in the Property Valuation Office, Lee Cochran, Room 6, Owen County Courthouse. Thus, we conclude that this portion of the response was in compliance with the requirements of KRS 61.872(4) and the Open Records Act.
Finally, Mr. Wilson in his letter of appeal indicated that he had discovered information in the records provided and other reference materials that refer to the records that were not located. This office is not, in general, equipped to resolve a dispute concerning a perceived disparity between records already provided, and records believed to exist which have not been provided. 03-ORD-241. Again, if Mr. Wilson has information that would assist the County Clerk in determining if records exist or where they may be located, he should provide that information. This is particularly so where some of the requested records are over 150 years old. As noted above, the County Clerk is not required to conduct research or an extraordinary search, if the requester does not provide precise information about the requested records to enable the agency to identify and locate responsive records. Absent that, the requester must then use his own time to search the records. Where a requester cannot identify the records he desires with precision, or wishes to extract information that 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. Moreover, in her supplemental response to the letter of appeal, the County Clerk advised that she or her staff "will answer any questions and assist Mr. Wilson as needed for location of records in the Owen County Clerk's Office during regular business hours. " Having afforded Mr. Wilson the opportunity to do so, and in the absence of any evidence of bad faith on the part of the agency, we find that the County Clerk properly discharged her duties under KRS 61.872, et seq .
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.