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 Marion County Emergency Management Office violated the Open Records Act in the disposition of Chuck Helm's January 8 and January 25, 2010, requests for "a copy of the 2009 updated Marion County Emergency Operations Plan." For the reasons that follow, we conclude that the agency did not violate the Act.
Mr. Helm made his January 8 request in his capacity as Chief of the Raywick Volunteer Fire Department because the department did not possess a copy of the current plan. On January 25, he followed up with another letter because he had received no response. It is not evident from the record whether the January 8 letter was received. On January 28, 2010, the Emergency Management Office mailed Mr. Helm a letter dated January 26, 2010, from Director Kenny Blair, stating in relevant part as follows:
At this time, the Kentucky Division of Emergency Management and this office is [sic] revising and condensing the Marion County Emergency Operation Plan. Once that version is available, the Marion County Emergency Management Office will disseminate this up-to-date EOP. At this time, we are not making available copies of the old EOP. However, copies of the current and most up-to-date EOP are available for review and/or if a disaster should occur through this office.
In his letter initiating this open records appeal, received by this office on February 3, 2010, Mr. Helm explains: "I have made a request for a copy of the 2009 updated Marion County Emergency Management Operations Plan, not a plan that is revision. As per KRS 39B.030(3) this plan shall be updated not less than annually. My request was for the 2009 updated plan."
The agency's response is in the form of a letter from Marion County Attorney Joseph H. Mattingly III dated February 8, 2010. Mr. Mattingly points out that Mr. Helm was told "the most up to date Emergency Management Plan was available for the complaining party's review" and yet "[a]t no time ? did the complaining party request an opportunity to review the latest version." He further states:
The most current Marion County Emergency Operation Plan in effect during 2009, contains approximately 500 pages and it is the agency's position that the complaining party should be required to first inspect the records and then select the items he wants copied rather than requiring the agency to copy a voluminous compilation of documents, particularly where the complaining party has failed to make advance payment of the copying charges or offer to do so.
In a letter received by this office on February 11, 2010, Mr. Helm replies:
I have not requested to review the plan; I have requested a copy of the 2009 Updated Plan (plan in effect for the time frame of my request). ?
? Based on the fact that the Marion County Emergency Management Agency has no scheduled office hours that they are open to the general public, a review of the plan in this office is neither practical nor logical. I also understand that the agency may charge a fee for a copy of this document as allowed by state law. I have not been advised by the agency as to what the cost would be. I will be glad to pay the cost associated in obtaining this document.
We believe the Marion County Emergency Management Office did not violate the Open Records Act by denying Mr. Helm's request.
The Open Records Act does not create a universal right to obtain copies of public records by mail. Rather, the basic right is described in KRS 61.872(2) as "the right to inspect public records. " (Emphasis added.) KRS 61.872(3)(b) gives some applicants the option of obtaining copies by mail instead of inspecting the records, but it is only those applicants whose "residence or principal place of business is outside the county in which the public records are located." From all indications, Mr. Helm does not fall within this category. Assuming that to be true, the agency could lawfully require him to inspect the records in person and make any copies himself. Cf. 09-ORD-173, p. 4.
Although Mr. Helm points out that the offices of the agency are not "open to the general public, " this is not a legal obstacle to the inspection of records. KRS 61.872(3)(a) provides that "[a] person may inspect the public records [d]uring the regular office hours of the public agency, " not merely when or if the agency's premises are normally open to the general public. Furthermore, a public agency is required by KRS 61.872(1) to make "suitable facilities ? available" for inspection of public records. Therefore, the Marion County Emergency Management Office must provide a location on government premises for Mr. Helm to inspect public records if he so requests. See, e.g., 09-ORD-048, 09-ORD-165. Since that was not the nature of his request in this instance, however, we must conclude that the agency did not violate the Open Records Act by denying his request to receive copies by mail.
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.
Chuck Helm, ChiefJoseph H. Mattingly III, Esq.Kenny Blair, Director