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 Clark County Clerk violated the Kentucky Open Records Act in the disposition of Kurt Fiegel's request to inspect "County Tax Records beginning in 1889 . . . through to 1951." Although Mr. Fiegel was advised by the PVA that such records "are now stored in the attic of the Clark County Court House [sic], Winchester, Kentucky[,]" Anita S. Jones, Clark County Clerk, indicated that "records that are in the attic are the property of PVA office"; therefore, she did "not know what years are available." According to Ms. Jones, the "Clark County Public Library has some of the old tax records on microfilm or computer." By letter dated April 16, 2007, Mr. Fiegel initiated this appeal challenging the "refusal" of the Clerk to allow him to inspect "records in her possession." 1 Because the instant appeal presents no reason to depart from governing precedent, this office cannot affirm the Clerk's disposition of Mr. Fiegel's request.
Upon receiving notification of Mr. Fiegel's appeal from this office, Brian N. Thomas, Clark County Attorney, responded on behalf of the Clerk. As explained by Mr. Thomas, the Clerk "responded by affixing a handwritten note to the bottom of said request that in no way can be construed as an attempt to deny access to open records." In addition to advising Mr. Fiegel regarding the location of the records, the Clerk "reiterated her concern that she could not verify the authenticity or completeness of those records. . . .At no time does [the Clerk] imply or insinuate that those records are not available for inspection. " 2 Rather, the Clerk "merely advises Mr. Fiegel that the completeness of those records cannot be verified by her office since they originated from the PVA office and because those records were compiled prior to" when she took office.
Citing OAG 78-728, Mr. Thomas notes that a public agency is not required to "supply copies of records in response to a blanket request" and the right of the requester to receive copies "is ancillary to the right of inspection. Therefore, if Mr. Fiegel wishes to engage in a fishing expedition to try to ascertain specific records found over this 62 year period, he must do so himself." 3 In closing, Mr. Thomas reiterates "the sentiments" expressed by the Clerk - that such records "do exist, those records are in the Clark County Courthouse and there can be no verification as to the completeness of those records. If Mr. Fiegel wishes to come down and conduct a fishing expedition" 4 for these records to determine which ones are available, "it is clearly within his purview and at no time has any attempt been made by [the Clerk] to prevent him from inspecting those records." 5
In 06-ORD-087, this office conclusively resolved the sole issue presented in reviewing the Owen County Clerk's disposition of a request for "[a]ll completed tax rolls from 1860-2001 pertaining to the owners of Mountain Island . . ." As in this case, the Clerk had initially advised the requester that such records were not available in her office but were located in the office of the PVA, whose address and location she also provided in compliance with KRS 61.872(4). Referencing 06-ORD-072, in which the Attorney General was asked to determine if the Owen County Clerk properly denied having custody of the Owen County Tax Rolls for a period of time dating back to 1856, this office engaged in the following analysis:
We affirmed the Clerk's denial, noting that she had fully complied with the Act, specifically KRS 61.872(4), by so notifying [the requester] and furnishing him with the name and location of the official custodian of the tax rolls, to wit, the Owen County Property Valuation Administrator. On closer examination, we find that our holding was in error. While it is true that the PVA is initially responsible for the maintenance and retention of the property tax roll, the tax roll is to be '[t]ransferred to the respective County Clerk's Office after five years, and audit" per KRS 133.047 and the Revenue Cabinet Records Retention Schedule established by the Archives and Records Commission at Series No. 03366. . . The County Clerk is thereafter responsible for the permanent maintenance and retention of the tax roll per the County Clerk Records Retention Schedule established by the Commission at Series No. L1433. . . Simply stated, we are unaware of any authority supporting the Owen County Clerk's position that she is not the custodian of the requested tax rolls. This being the case, we find that she subverted the intent of the Open Records Act, short of denial of inspection and perhaps unintentionally, by misdirecting [the requester] to the Owen County Property Valuation Administrator. [The Clerk] must, therefore, afford [the requester] access to the requested tax rolls or otherwise explain her failure to comply with KRS 133.047 and applicable records retention requirements.
06-ORD-087, p. 4. 6
In our view, this analysis is equally applicable on the facts presented. Although the Clark County Clerk did not deny Mr. Fiegel's request, nor does the record contain any evidence which suggests that she acted in bad faith, this office must conclude that the Clerk subverted the intent of the Act, short of denial of inspection, to the extent she misdirected him to the Clark County PVA.
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 As further observed by Mr. Fiegel, the Clerk "claims that the records are not open records because they are under the purview of the Property Valuation Administrator. I do not agree because the records I request to inspect are a public record [sic]." To clarify, the Clerk does not appear to rely on the character of the records in responding to Mr. Fiegel's request; however, the relevant inquiry is whether the records are open since there is no dispute as to whether such records can properly be characterized as "public" within the meaning of KRS 61.870(2).
2 While the Clerk may very well have relied, at least partially, upon her inability to verify the authenticity of the records at issue, nothing in her written response so indicates. To clarify, the Clerk was not required to provide Mr. Fiegel with a certified copy of the record(s) at issue; a public agency is not statutorily obligated to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act. 03-ORD-207, p. 3.
3 In his request, Mr. Fiegel expressly acknowledges that if he requires a copy of any records being sought, he "will have to pay the actual cost of making these copies." See KRS 61.874 (1) and (3).
4 In so arguing, Mr. Thomas relies upon the line of decisions in which this office has recognized:
'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). 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.
05-ORD-006, pp. 7-8.
5 Guidelines for inspection of public records are codified at KRS 61.872. With regard to application of this provision, the analysis contained in 05-ORD-277 at pgs. 4-6 is controlling. See 06-ORD-072. Having failed to invoke any of the only "exceptions" to the general rule of inspection or copying (codified at KRS 61.872(4), (5), and (6)), the Clerk must permit Mr. Fiegel to inspect the requested record(s) and/or produce copies to be mailed upon receipt of all fees and the cost of mailing in order to comply with the Open Records Act. Regardless of whether the records are stored at another location or also available elsewhere, (electronically or in hard copy form) the Clerk "cannot avoid this requirement by directing the requester to conduct his own search" at the library. 95-ORD-52, p. 5 (concluding at pp. 1-2 that a public agency "must retrieve the records in order to make them available for inspection or copying, and that the [public agency's] attempt to satisfy the Open Records Act by directing [the requester] to the King Library constituted a violation of the Act"). In our view, 95-ORD-52 is controlling on this issue although the Clerk, to her credit, was attempting to assist Mr. Fiegel.
6 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.