Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Elsmere Fire Protection District subverted the intent of the Open Records Act, short of denial of inspection, in the disposition of Jacqueline Castellano's February 3, 2009, request to inspect "all approved financials, check ledgers, invoices, and time sheets for the months of October, November, and December." For the reasons that follow, we find that the District's response to Ms. Castellano's request constituted a subversion of the intent of the Act.
By letter dated February 10, 2009, Stephen C. Martin, attorney and designated custodian for the District, notified Ms. Castellano that the requested records would "be made available in [his] office for [her] review." This response apparently crossed Ms. Castellano's letter of appeal in the mail. The record on appeal contains no further written communication from Ms. Castellano, but she has not withdrawn her appeal. Because the District's response raises a KRS 61.872 issue relating to the time and place of inspection, we proceed with our analysis.
KRS 61.872(1), (2), and (3) provide:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) 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.
(3) A person may inspect the public records:
As we have so often observed in construing these provisions, "the statute contemplates records 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. " 95-ORD-52, p. 3. Ms. Castellano asserted her right to conduct an onsite inspection of the records. The District responded by inviting her to inspect the records in the office of its official custodian, Mr. Martin, in his private law office located in Covington, Kentucky. While we ascribe no improper motive to the District, we find that existing authority does not support this practice.
In 04-ORD-123, this office analyzed a nearly identical situation. Agency counsel had been designated official records custodian for a fifth class city located in Jefferson County. The records to which the requester sought access resided in counsel/custodian's private law office, and the latter invited the former to inspect the records in his office. At pages 5 through 7, we considered whether the private law office constituted suitable facilities for exercise of the right of inspection. We concluded that it did not, reasoning:
Because these records are . . . [city] records, we find that it is reasonable to require their production on [city] premises. KRS 61.872(1) and KRS 61.872(3)(a) support this conclusion, requiring public agencies, and not their contract attorneys, to make available suitable facilities for the exercise of the right of inspection, and providing that persons may inspect public records during the regular hours of the public agency. The record on appeal discloses that the [city] maintains a city hall wherein the records can be inspected . . . . [W]e find that it is incumbent on the city to produce the requested records in suitable facilities located in its city hall. To hold otherwise, in our view, creates the potential for subversion of the intent of the Open Records Act by creating undue hardships for individuals wishing to exercise the right of onsite inspection.
04-ORD-123, pp. 6-7, citing 93-ORD-39.
It is the decision of this office that 04-ORD-123, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. Like the city in 04-ORD-123, the fire district maintains a facility located at 401 Garvey Avenue. Consistent with the view we took in 04-ORD-123, we find that the District must "make immediate arrangements for [Ms. Castellano] to conduct inspection of [the requested records] in suitable facilities located [at 401 Garvey Avenue] during regular business hours."
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.
Distributed to:
Jacqueline CastellanoRobert Stegman, ChairmanChief Paul LaFontaineSteven C. Martin