Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Russell County Judge/Executive violated the Kentucky Open Records Act in the disposition of Richard L. Shivel's June 3, 2009, request to inspect and copy certain Fiscal Court records. For the reasons that follow, we find that the County Judge/Executive's actions were partially unlawful.
In his June 3 request, Mr. Shivel stated as follows:
Pursuant to KRS 61.870-61.884, I hereby request access to county records pertaining to Russell County Fiscal Court meetings and records related to monies spent by individual Magistrates in their respective districts, and any monies given or set aside for each individual districts [sic] by the Fiscal Court or members thereof.
Also access to each individual Magistrate's "folder" containing information pertaining to any work performed in the district and cost related to said work.
On June 4, 2009, Russell County Judge/Executive Mickey Garner replied that records of Fiscal Court meetings and expenditures could be inspected in the county clerk's office at any time, and then quoted some figures on how road funds received from the state were divided among the five districts. Finally, he stated:
According to [County] Attorney McGaha, Magistrates individual "folders" are their personal folders. You may request to see them from the Magistrates at a Fiscal Court meeting.
No exemption listed in KRS 61.878 was cited in support of this partial denial.
Mr. Shivel initiated an appeal to this office on June 16, 2009, in which he takes issue with this response:
? I have a problem with [the statement] concerning folders for each of the 5 Districts in the County being "personal" folders belonging to the individual Magistrate. My understanding of KRS 61.870-2 is that any function, activities, program, or operation funded by state or local authority is in-fact subject to Open Records requests. ?
?
I have attended Fiscal Court meetings ? and I have never heard any individual bills read aloud, or a copy printed in either of the two local newspapers[.] Only the Magistrates are furnished a copy of the bills to be paid each meeting.
The County Judge/Executive's response to this appeal states, in pertinent part:
[T]he folders to which Mr. Shivel refers are not any sort of officially or meticulously kept records of county business. The folders are merely manila folders for each district in the County, which are kept in the Judge Executive's office. 1 These folders contain photocopies of bills approved by the Fiscal Court and paid by the County and broken down into each district. The folders only contain information duplicated from another location in our office or the Clerk's office. In as much as the "folders" referred to are nothing more tha[n] duplicates of invoices already made public, it is our contention we have not denied Mr. Shivel's request in any way and have not denied him access to any information to which he is entitled pursuant to his request.
In conclusion, it is our contention all the information covered by Mr. Shivel's request was provided to him, either in my typed response to him or by directing him to the Russell County Court Clerk's office. 2 The only actual items not given to Mr. Shivel were the "folders" . However, the essence of Mr. Shivel's request was fulfilled because he was notified where to publicly access the same information contained in those folders, so no actual information was withheld.
We disagree that the Russell County Judge/Executive fully complied with Mr. Shivel's request and find that the Open Records Act was violated.
KRS 61.880(1) declares that "[a]n 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. " This language "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.App. 1996). In this instance, the County Judge/Executive violated the Act by withholding documents without citing an applicable statutory exemption under KRS 61.878.
Moreover, "there is no specific exception to 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 that other public agency. " OAG 91-21, p. 4. The "folders" in question were "public records" under the definition in KRS 61.870(2), which extends to "documentation, regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " (Emphasis added.)
The mere possession of records by the agency from which those records are requested is enough to compel that agency to make them available for public inspection or explain why they are exempt. Cf. 98-ORD-100 (discounting the concept of "casual possession"). Since the manila folders containing records of county expenditures "are kept in the Judge Executive's office," they are in the possession of a public agency and consequently are subject to the provisions of the Open Records Act. Moreover, to the extent that those records might also be kept elsewhere in the County Judge/Executive's office, but not in the same configurations or groupings, Mr. Shivel should still have access to the folders in order to know which particular documents have been set aside as pertaining to each magistrate's district. See generally Com. v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008) (applicant "could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen").
It is not adequate for the County Judge/Executive to summarize or paraphrase "information" appearing in public records as a purported substitute for providing access to the documents.
The Attorney General has long recognized 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. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying.
99-ORD-121, pp. 13-14. Inasmuch as the Russell County Judge/Executive withheld access to these folders containing documents pertaining to the expenditure of county funds, without invoking any applicable exemption, we find that a substantive violation of the Open Records Act occurred.
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 proceedings.
Richard L. ShivelMicky GarnerMark L. McGaha, Esq.
Footnotes
Footnotes
1 We deem this statement to be an acknowledgment that the County Judge/Executive is the custodian of these records.
2 From this statement we conclude that the Russell County Clerk and County Judge/Executive are treated as separate public agencies for open records purposes.
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