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 March 4, 2006 and March 6, 2006 requests of Aaron Wilson to inspect records relating to name changes of Morse Marks and Kenny Marks; Morse Marks Estate and John Watson Estate; 93-9 Farm Property Data Card; and open records request letters and responses. For the reasons that follow, we conclude that the County Clerk properly responded to Mr. Wilson's requests by advising him that he could conduct an onsite inspection of the requested records during the agency's regular business hours.
By letter dated March 6, 2006, Mary Kay Duncan, Owen County Clerk, advised Mr. Wilson that, with the exception of records for request number 4 which are records of the Property Valuation Administrator's Office, Lee Cochran, in room 6, Owen County Courthouse, the requested records were available for inspection in her office Monday, Tuesday, Thursday, and Friday from 8:00 a.m. to 4:00 p.m. and on Saturday from 8:00 a.m. to 12:00 Noon. Specifically addressing the requests for records involving name change records and probate records, Ms. Duncan advised that there were some name change records and probate records in the County Clerk's Office, but such records could also be found in the Owen Circuit Court Clerk's Office, Cindy Wright, Owen County Courthouse. Addressing the request for open records and agency responses, Ms. Duncan advised that the County Clerk's Office had received no other open records request prior to his.
In his letter of appeal, Mr. Wilson complains that the County Clerk's Office produced no records for his inspection.
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 advised that the County Clerk had received Mr. Wilson's requests on March 4, 2006 and March 6, 2006, and he further stated:
The Clerk immediately verified the records in her office and prepared her written response on March 6, 2006 which was held since she had no address for mailing and Mr. Wilson had said he would pick it up on Thursday.
On March 9, 2006 the Open Records Appeal, Log Number 200600132 was received from your office and answered March 10, 2006. Since Mr. Wilson had not picked up his responses to the second and third request the Owen County Clerk mailed all of her responses to the address that was included in the appeal.
On March 11, 2006 Mr. Wilson came to the Clerk's office and requested his responses. The Deputy Clerk advised that they had been mailed but she would see if she could locate them and provide him copies. While she was making copies Mr. Wilson demanded the file and the Deputy Clerk said she would have to contact the Clerk for direction. Mr. Wilson was rude and created a scene in the Owen County Clerk's Office which was filled with customers. The file was turned over to Mr. Wilson for his inspection and cop[y]ing upon direction of the Clerk.
The Deputy Clerk once again shows Mr. Wilson the records room, the location of the books and offered her assistance in finding the records but he declined her aid. The Deputy Clerk returned to her desk since the office was extremely busy but upon noticing that Mr. Wilson was having difficulty with the public copy machine she went to assist him and once again asked if he needed any help locating the records and he declined.
The Owen County Clerk's office did not deny Mr. Wilson the records he requested to inspect in his Open Records Request and their assistance was denied.
In a March 22, 2006 reply, Mr. Wilson, in part, stated he was neither rude nor created a scene in the Clerk's Office and the Deputy Clerk had never at any time offered help in locating the records and he never denied what little assistance that was offered.
We are asked if the actions of the Owen County Clerk's Office violated the Open Records Act. For the reasons that follow, we conclude that the actions did not constitute a violation of the Open Records Act.
In its responses to Mr. Wilson's requests, the Office of Owen County Clerk advised him that he could conduct an onsite inspection for the requested records during the agency's regular business hours. These responses by the County Clerk cannot properly be characterized as a denial. In 06-ORD-072, at p. 5, this office stated:
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.
In the instant appeal, Mr. Wilson did not request for copies of the records or request receipt of the records by mail. Thus, under authority of KRS 61.872(3)(a), he would be entitled to inspect the records during the regular business hours of the County Clerk's Office. This is what the County Clerk has offered Mr. Wilson. A county clerk's office is charged with the duty of recording and keeping records of, inter alia, legal instruments, voter registration, and county licensing and is equipped to readily locate a deed if a precise description, namely the book and page number, is provided. 95-ORD-43; 03-ORD-067. If the requester is unable to provide this precise information, it is not incumbent on the county clerk "to make extraordinary efforts to identify, locate, and retrieve" the record, either for inspection or for making copies and mailing. 97-ORD-46, at p. 3; 03-ORD-067. As noted above, the responses of the Office of the County Clerk indicated that she offered to assist Mr. Wilson in locating the records he seeks by showing where the appropriate books are located and continues to offer assistance to him in its response to the letter of appeal. Accordingly, we find the County Clerk's response in this regard was proper and did not constitute a violation of the Open Records Act.
In addition the responses which advised Mr. Wilson that the County Clerk did not have certain requested records (PVA records) and informing him of the name and location of the custodian and agency where the records might be located (PVA's office) or where similar records (name change and probate records) might be found (Owen Circuit Court Clerk's Office) was consistent with the requirement of KRS 61.872(4) and prior decisions of this office. See 06--ORD-072.
Finally, the response to the letter of appeal indicates that Mr. Wilson was permitted to inspect the "private file" bearing his name which he demanded to see. The record does not indicate whether this file was the subject of an open records request. Even assuming that such a request was made, the issue as to it would be moot as inspection was allowed by the County Clerk. 40 KAR 1:030, Section 6. The same would apply to the responses to Mr. Wilson's open records requests, copies of which were both mailed to and provided to him in the Office of the County Clerk.
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.