Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Bullitt County Attorney violated, or subverted the intent of, the Open Records Act in partially denying the request of Monica Meredith Robinson for thirteen categories of specified information and records. Although the County Attorney cannot produce for inspection or copying those records which do not exist, nor is he required to honor a request for information by compiling a list or creating a record to satisfy Ms. Robinson's request, the County Attorney must provide Ms. Robinson with access to any existing records which are potentially responsive to her request unless the County Attorney can establish how one or more of the exceptions codified at KRS 61.878(1)(a)-(n) applies to those records in compliance with KRS 61.880(1). With one possible exception, the County Attorney has failed to articulate the basis for denial in terms of the attorney-client privilege codified at KRE 503(b), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), as required to satisfy the statutory burden of proof relative to those records for which he invoked the privilege.
By letter directed to County Attorney Walter A. Sholar on February 3, 2006, Ms. Robinson requested to inspect and copy "documents relating to the following information":
1. Please provide the name and dates of employment of all assistant county attorney (s) employed by the Bullitt County Attorney's [O]ffice who have physically resided in Bullitt County during their dates of employment(s) for the calendar years of [1996-present].
2. Please provide the names and dates of employment of all assistant county attorney (s) who were employed [full-time] by the Bullitt County Attorney's [O]ffice for the calendar years of [1990-present].
3. Please provide the name and dates of employment of all assistant county attorney (s) employed by the Bullitt County Attorney's [O]ffice for the calendar years of [1998-present]. Please denote from what source(s) the assistant county attorney (s) was paid per calendar year (ex: PAC; Fiscal Court; bad check collection; tax collection, etc.).
4. Please provide the dates, witnesses and locations of the swearing in ceremony of the oath of office for all assistant county attorney (s) employed by the Bullitt County Attorney's [O]ffice for the calendar years of [1998-present]. Also, please list who performed each oath ceremony.
5. Denoting each calendar year individually, please provide a complete list of all [firehouses] and water districts you have represented as county attorney for the calendar years of [1990-present]. Additionally, please provide copies of each contract of employment(s) you have with each [firehouse] and water district for each calendar year.
6. Please provide a copy of the Attorney General or KBA Ethics [O]pinion you advised [F]iscal [C]ourt that you would produce relating to the potential conflict of your representation of [F]iscal [C]ourt and [P]lanning and [Z]oning. (See attached Minutes from March 2001 Fiscal Court meeting).
7. Please provide a copy of the contract the Bullitt County Attorney's [O]ffice prepared and presented to law enforcement officers limiting their ability to offer and/or agree to any plea on a felony offense involving drug charges. Additionally, please provide a list of all police officers this contract was presented to and the date [on] which each officer signed the agreement.
8. Please provide a copy of the last contract the Bullitt County Attorney's [O]ffice had with the Cabinet for [Health and Family Services] for civil collection of child support. Additionally, please provide all time slips for services charged to the Cabinet by the Bullitt County Attorney for work performed solely for the purpose of child support collection for the years of [1990-present].
9. Please provide the names and dates of employment of any victim's advocate[s] employed by the Bullitt County Attorney's [O]ffice during the calendar years of [1990-present].
10. Please provide a copy of all "cases and studies" that were "compiled and relied upon" by [F]iscal [C]ourt in determining the adverse secondary effects of sexually oriented businesses, as referenced by County Judge Rigdon at the December 20, 2005, [F]iscal [C]ourt meeting.
11. Please provide a list of all cases, including the style of the case and the case number, filed against any Bullitt County government agency, or employee, in which the Bullitt County Attorney defended the action during the calendar years of [1990-present].
12. Please provide the monetary amount of fees paid to the Bullitt County Attorney's [O]ffice through the bad check program for the calendar years of [2002-present].
13. Please provide a complete list of all continuing legal education courses, symposiums, lectures series, training courses, etc. attended by the Bullitt County Attorney or any assistant county attorneys specifically in their role as County Attorney [or assistant county attorney] during the calendar years of [2002-present]. Specifically, please provide the name of the course, the course sponsor and the date of the event.
In denying Items 1-5, 9, 11, 12, 13, and the second part of Item 8 (time slips), Mr. Sholar responded as follows:
The information requested herein does not meet the definition of a "public record" or document as such and there is no record containing the precise information requested. A public agency is not required to compile information or to create a document that does not already exist in response to an open records request.
With respect to Item 6, Mr. Sholar advised Ms. Robinson that he "did not advise the Fiscal Court that" he "would produce anything." To the contrary, Mr. Sholar advised the Fiscal Court that he "had requested an opinion from the Bar Association's Ethics Committee"; he is "unaware of any opinion rendered by the Attorney General." In Mr. Sholar's view, opinions rendered to him by the KBA Ethics Committee "do not qualify as a public record. " Moreover, any such document "would pertain to legal representation by the Bullitt County Attorney" of his client, Bullitt Fiscal Court, and is therefore "exempt from disclosure pursuant to the [attorney-client] privilege." In support of this position, Mr. Sholar refers Ms. Robinson to "KRS 61.878(1) and decisions of the courts interpreting its application." Even assuming that a formal opinion was "issued by the Attorney General same would be under the control of the Attorney General as its official custodian" ; Mr. Sholar therefore advised Ms. Robinson that she "may seek that information" from this office. With respect to Item 7, Mr. Sholar has "no knowledge of the existence of any such contract."
In addressing Item 8 of Ms. Robinson's request, Mr. Sholar reiterated his argument relative to the attorney-client privilege, noting that he would not object to disclosure of the record if the CHFS, the custodial agency/his client, waived the privilege. Although his office does not maintain "time slips," Mr. Sholar advised Ms. Robinson that "the information sought may be contained in files retained in this office." Any such records "may be reviewed in [his] office during the hours noted above [Monday through Friday from 8:00 a.m. to 4:00 p.m.]." In denying access to those records implicated by Item 10, Mr. Sholar asserted that if such records "exist[] and [are] in [his] possession, [same] would pertain to legal representation of his "client," the Bullitt Fiscal Court, and would therefore be exempt from disclosure under the attorney-client privilege.
Based upon "the good faith belief" that Mr. Sholar "subverted the intent of the Open Records Act short of a complete denial of all records requested," Ms. Robinson initiated the instant appeal by letter directed to this office on February 28, 2006, alleging various procedural irregularities and substantive errors. 1 In support of her position relative to Items 2, 5, 8, 9, 11, and 12, Ms. Robinson attaches various articles and campaign advertisements, none of which are probative as to the existence of responsive records. More generally, Ms. Robinson repeatedly asserts that Mr. Sholar "has clearly failed to provide particular and detailed information" in response to her request, and that his position "that no record containing the information requested [exists] is inaccurate and misleading"; Ms. Robinson also contends that Mr. Sholar has "failed to allege with any specificity which part of KRS 61.878(1)" applies each time he invoked that provision. With respect to Item 10, Ms. Robinson finds Mr. Sholar's response "quite confusing" since she learned "through an open record request of a colleague served upon the Bullitt County Judge Executive," that "it is in fact, [a] public record" consisting of "973 pages and is on file in the Office of the Bullitt County Clerk."
Because Ms. Robinson does not challenge Mr. Sholar's response to Item 7, consideration of any related issues is unnecessary. In addressing Mr. Sholar's response to Item 3, Ms. Robinson correctly observes that it is well-established that "[release of] information regarding the name, position, work station and salary of public employees does not constitute a [clearly] unwarranted invasion of [personal] privacy[,]" citing a number of decisions issued by this office.
Upon receiving notification of Ms. Robinson's appeal from this office, Mr. Sholar reiterated his previous arguments, 2 elaborating as follows relative to Items 1-4, 8 and 9:
[T]he information sought may be contained in individual personnel, ["or other files"] retained in this office which are public record and, of course, any such records may be reviewed in our office Monday through Friday from 8:00 a.m. to 4:00 p.m. However, pursuant to KRS 61.878(1)(a) and court rulings thereunder, information of a private nature will not be released and these files may require redaction of certain portions of those personnel documents. 3 However, no such public document was requested in the written inquiry. The agency cannot, and should not be required, to guess as to the proper public document being requested in any inquiry. Additionally, archive and retention schedule protocols for public offices, and in particular, the Office of the County Attorney, do not require the retention of ancient documents and in fact, dictate the proper disposal of outdated records in a timely fashion. Therefore, some documents sought in this request may not exist due to proper disposal through archiving procedures. 4
In relation to Item 5, Mr. Sholar further asserts "there are no 'contracts' such as those requested in the inquiry."
With respect to the KBA Ethics Opinion at issue (Item 6), Mr. Sholar continues "to believe that the requested opinion pertains to my private ethical considerations, which is an issue between me, my ['Client'] the Fiscal Court and the [KBA] not my political opponent." In his view, the privilege "excludes any such opinion in [that] it relates to my private advice to the Fiscal Court and the Joint Planning Commission on matters discussed in executive session. " 5 Finally, Mr. Sholar's office "does not maintain a file containing private KBA ethics opinions." On appeal, Mr. Sholar also maintains his position that Items 8 and 10 are protected by the attorney-client privilege. As to the latter, Mr. Sholar elaborates as follows:
The Bullitt County Attorney serves as legal counsel to the Bullitt Fiscal Court. The information sought through the request was obtained for and provided to the "client" Bullitt Fiscal Court [by the County Attorney] in his official capacity as legal counsel on a matter regarding legislative drafting for a new adult entertainment ordinance considered by the Court and ultimately adopted by the Court and passed as county law. Prior to any public discussions or meetings the County Attorney provided legal research and advice to the [C]ourt in executive session for [its] consideration. That legal advice and those executive sessions are not subject to any open records disclosure due to the attorney/client privilege and the fact that the open records statute does not apply to executive session materials [generated by] a fiscal court when discussing legal matters.
Once the Bullitt Fiscal Court held public meetings, considered the legislation and public comments, voted and passed the new legislation[,] the "client" Bullitt Fiscal Court made the "cases and studies" referred to in this request part of the public record of the Bullitt Fiscal Court, not the Office of the County Attorney. Any documents [] that my office may have had would have been preliminary in nature. 6 The official documents were openly filed with the county clerk at an "open Fiscal Court meeting."
In addressing Items 11-13, Mr. Sholar asserts that Ms. Robinson's request "does not specifically name nor even seek any existing document but rather requests that a ['list' or document] be created for the requestor," reiterating his position as to the lack of an obligation to compile information or create a document. Relative to Item 11, Mr. Sholar additionally notes that "any information contained within the litigation files of the Bullitt County Attorney regarding his representation of any government agency or employee is covered by the attorney-client privilege"; the custodian of any public record concerning "litigation in the courts would be the clerk of the court where the action was filed and litigated not the attorney who represented a named party." Likewise, the official custodian of any records implicated by Item 13 would be the KBA. 7
As a public agency, the Bullitt County Attorney is obligated to comply with the procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 8 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208. Failing to respond in a timely and proper fashion constitutes a clear violation of KRS 61.880(1); compliance with these procedural guidelines is mandatory, and a duty owed by public agencies of equal importance as the provision of other services to the public. 03-ORD-067, p. 2, citing 93-ORD-125, p. 5.
Noticeably absent from the initial response of the County Attorney is any reference to the specific exception among those codified at KRS 61.878(1) (Mr. Sholar references KRS 61.878(1)(a) on appeal) upon which he relies in denying portions of Ms. Robinson's request (invoking the attorney-client privilege, "KRS 61.878(1) and decisions of the courts interpreting its application," rather than KRE 503, incorporated into the Act by operation of KRS 61.878(1)(l), and specific cases, for example) as well as the requisite brief explanation of how the exception(s) applies. 9 To this extent, the County Attorney's response is procedurally deficient. A public agency must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy the burden of proof imposed upon public agencies by virtue of KRS 61.880(2)(c). 10 04-ORD-106, p. 6. In responding to future requests, the County Attorney should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Turning to the first substantive issue presented, this office concludes that governing precedent supports the position of Mr. Sholar relative to those requests which he properly characterizes as requests for information rather than specifically described public records. Early on, this office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. Elaborating upon this position, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records" ) (emphasis added), validates this position.
However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (Original emphasis). 11 In keeping with this position, the Attorney General has noted that if a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Echoing this view, our office has held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5. Such is the case here.
Because Ms. Robinson apparently lives and works in the county where the requested records are located, to the extent any still exist, 12 Mr. Sholar may require Ms. Robinson to conduct an on-site inspection of those existing records in his custody which are potentially responsive to her request prior to providing her with copies. Under such circumstances, the requester (Ms. Robinson) is only required to describe the records "with sufficient clarity to enable the public agency to locate and make them available." 97-ORD-46, p. 4. 13 Absent a properly invoked statutory exception authorizing nondisclosure of records containing the information sought, the County Attorney must direct Ms. Robinson to the relevant files (or redacted copies thereof) so that she may extract the information herself. Bearing in mind "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," KRS 61.871, this resolution of the dispute strikes a reasonable balance between the public's right of access and the agency's need "to prevent excessive disruption of its essential functions." KRS 61.876(1). Accordingly, the remaining question is whether the County Attorney properly denied access to records implicated by Items 6, 8, and 10 on the basis of the attorney-client privilege.
In 04-ORD-087 (pp. 12-18), a copy of which is attached hereto and incorporated by reference, this office engaged in a thorough analysis of the privilege as applied in this context; the reasoning of 04-ORD-087 is controlling on the facts presented. Although Mr. Sholar is certainly entitled to withhold any record which is properly characterized as a "confidential communication made for the purpose of facilitating the rendition of profession legal services" to his client between the client and himself (or a representative of his office), or between representatives of the client, or between the client and a representative of the client, pursuant to KRE 503(b), the KBA Ethics Opinion, issued by the KBA Ethics Committee in response to Mr. Sholar's request, simply does not satisfy this criteria. In contrast, any confidential communication between Mr. Sholar and the Fiscal Court related to this Opinion would qualify for protection.
When addressing the accessibility of records like the requested contract between the Bullitt County Attorney and the CHFS, the Attorney General has upheld the public's right of access. 00-ORD-104, p. 7; 95-ORD-18; OAG 92-92. Although the attorney-client privilege, codified at KRE 503, is incorporated into the Open Records Act by virtue of KRS 61.878(1)(l) , "the privilege does not extend to contracts and billing records of attorneys working for a public agency. " 97-ORD-66, p. 10. Elaborating upon this principle, the Attorney General has observed:
There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of [e]nsuring agency accountability. We recognized this principle in OAG 82-169 and OAG 85-91, where we expressly held that the records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys, should be made available for inspection at the conclusion of pending litigation. We believe that that opinion coupled with the authorities cited above, mandate release of the monthly statements prepared by the city's attorneys which reflect the general nature of the legal services rendered. Should those invoices disclose substantive matters protected by the attorney-client privilege, and exempt under KRS [61.878(1)(l),] the exempt material should be separated from the non-exempt materials, and the non-exempt materials [should be] released for public inspection.
In OAG 92-92, we elaborated on OAG 92-14, reaffirming our opinion that information about attorney fees is privileged only if its disclosure would reveal confidential communications between the attorney and client, and announcing that the existence of pending litigation does not preclude release of the records by a public agency unless the agency is a law enforcement agency or an agency involved in administrative adjudication, and premature disclosure of the information would harm the agency. KRS 61.878(1)(h).
00-ORD-104, p. 8, citing 95-ORD-81, p. 3.
In keeping with this line of decisions, the County Attorney must disclose any existing record in his custody which is responsive to Item 8 (part 1) of Ms. Robinson's request. 14 With respect to the "cases and studies," which apparently were conducted by outside sources at Mr. Sholar's request, the content is subject to inspection; the results of any independent research conducted by Mr. Sholar along with advice to his client premised upon same or the "cases and studies" would arguably qualify for protection under the attorney work-product rule codified at Fed. R. Civ. P .26(b)(3), although Mr. Sholar has not raised this argument. 15 That being said, this office reminds Ms. Robinson and Mr. Sholar that "we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records that satisfy the request"; the parties should work together in a spirit of cooperation toward an amicable resolution of this dispute. 93-ORD-15, p. 6.
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 On appeal, Ms. Robinson raised the following primary argument:
KRS 61.870(2) states that "['Public record'] means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. ['Public record'] shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority."
The Kentucky legislature designed the broad definition of "public record" in order to keep government records open to the public. There are only fourteen exemptions to the definition of public record. The County Attorney has failed to cite any referencing exemption as his source of denial of this request; rather, there is a broad base (sic) denial that [the record requested] does not constitute a public record or that it does not exist and that he is not required to create a document to answer the question. First, "the term ['public records'] includes all such records even if they are not subject to inspection under an exemption and therefore [are] not ['open records']." Citing Your Duty Under the Law, page 5, Office of the Attorney General, September 2005. "The term ['public record' ] includes emails, databases, and other records electronically generated and/or stored . . . (and) includes public agency records that are not maintained o the agency's premises." [Id.]
"A public agency is not required to compile information or to create a document that does not already exist in response to an open records request . . . [however] masking exempt information contained in an otherwise nonexempt public record is not equivalent to records creation; the agency must discharge this statutory duty and bear associated costs." Citing Your Duty Under the Law, page 6, Office of the Attorney General, September 2005.
. . . To imply or presume that no document exists with the name, address and dates of employment of employees of the Bullitt County Attorney's [O]ffice is preposterous. The County Attorney has clearly failed to provide particular and detailed information in response to the denial of this request and has not met his burden of proof to support his actions. See Your Duty Under the Law, page 12, Office of the Attorney General, September 2005. See also Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996) stating KRS 61.880(1) requires the custodian of records to provide particular and detailed information in response to a request for documents.
In response to Items 2-6 and 8-13, Ms. Robinson incorporates by reference this response.
2 In addition, Mr. Sholar correctly observes that Ms. Robinson's repeated references to "campaign advertising" are "misplaced and without merit in this proceeding." As consistently recognized by this office:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.
93-ORD-15, p. 6; 05-ORD-162; 96-ORD-223. In other words, the Attorney General is "not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)"; the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2). 99-ORD-121, p. 17; 05-ORD-230.
3 Contrary to Mr. Sholar's implicit assertion, "the presence of some exempt information in the . . . [records] does not relieve [his office] of its obligation to provide all nonexempt information." 97-ORD-6, p. 4. Said another way, the "alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4; 97-ORD-6.
4 With respect to records which do not exist, the reasoning of 06-ORD-056, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented; Mr. Sholar has not satisfied his burden of proof relative to this argument.
5 In so arguing, Mr. Sholar presumably relies upon KRS 61.810(1)(c), a provision of the Open Meetings Act, pursuant to which "proposed or pending litigation against or on behalf of the public agency" can be discussed; such an issue is not properly raised in the context of an Open Records appeal nor does the record establish that litigation is proposed or pending.
6 In so arguing, Mr. Sholar implicitly relies upon KRS 61.878(1)(i) and/or (1)(j); the analysis contained in pp. 19-25 of 04-ORD-187, a copy of which is attached hereto and incorporated by reference, is controlling as to the application of these provisions.
7 To the extent Mr. Sholar provided Ms. Robinson with the name of the custodial agency relative to Items 11 and 13, Mr. Sholar substantially complied with KRS 61.872(4).
8 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
9 Neither his initial nor his supplemental response contains the specificity envisioned by KRS 61.880(1). It has long been the position of this office "that the mere invocation of an exception, without adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882 to justify the nondisclosure of a record." 02-ORD-152, p. 5 (citations omitted).
10 As consistently recognized by the Attorney General, a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed by a public agency as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original denial. Id.
11 KRS 61.872 establishes guidelines for providing access to public records under the Open Records Act. In relevant part, KRS 61.872 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 sum, the Open Records Act contemplates 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 whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, assuming that the requester precisely describes the records and the records are readily available within the agency. 02-ORD-26, p. 5; 97-ORD-16. See 02-ORD-26, p. 6, for a discussion of the greater burden imposed upon requesters seeking to receive copies of records through the mail.
12 Although Mr. Sholar references the Local Government General Records Retention Schedule generally in noting that "archive and retention schedule protocols for public offices, and in particular, the Office of the County Attorney, do not require the retention of ancient documents, . . . " Mr. Sholar fails to satisfy his burden of proof relative to this argument as well.
13 See 04-ORD-028, pp. 10-11, for the standard against which the adequacy of the search conducted by a public agency is measured.
14 Although the County Attorney failed to satisfy his burden of proof relative to the attorney-client privilege in denying access to the records implicated by Item 11, the County Attorney is not statutorily obligated to produce records for which he is not the custodian, nor is he required to generate a list containing the information requested if none currently exists. However, the County Attorney should make available for inspection any potentially responsive records in accordance with the reasoning found on pp. 12-13.
15 In addition, Mr. Sholar notes the "official documents were openly filed with the county clerk at an 'open Fiscal Court meeting.'"; this fact is "quite well known to [Ms. Robinson as evidenced by] her own admission as she has had her 'colleague' Mr. Conway obtain such information from the proper public agency . . ." Contrary to Mr. Sholar's implicit assertion, "there is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained" from the other agency. OAG 91-21, p. 3. If Mr. Sholar possesses any records which are responsive to this request, the availability of the records elsewhere does not alter the analysis.