Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Laurel County Clerk violated the Kentucky Open Records Act in the disposition of Shane Johnson's April 16, 2010, request "to inspect and copy . . . all information of the salaries for each full-time and part-time employee of the Laurel County Clerk's office paid with public funds from 1/1/07 to present" and "all information of any public funds (other than the funds paid pursuant to request # 1 above) paid to each full-time or part-time employee of the Laurel County Clerk's office paid from 1/1/07 to present," including "Per diem," reimbursement for travel costs, and bonuses. Inasmuch as the County Clerk did not receive Mr. Johnson's request until Monday, April 19, 2010, Mr. Johnson's April 20 appeal was premature given that a public agency has three business days after it receives a request in which to issue a written response under KRS 61.880(1). 1 See 10-ORD-102 (Shane Johnson/Laurel County Judge/Executive), pp. 2-4. Mr. Johnson's original written request was also deficient insofar as he failed to sign it per KRS 61.872(2); however, the County Clerk ultimately violated the Act in requesting that Mr. Johnson provide a picture identification prior to release of the records. "A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)." 94-ORD-101, p. 2.
On the bottom of Mr. Johnson's original written request, Laurel County Clerk Dean Johnson noted there was "no signature" and indicated that in accordance with KRS 61.872(2) Mr. Johnson should remedy this omission. The copy attached to Mr. Johnson's appeal contains a signature; however, the copy attached to the County Clerk's response, which appears to be a copy of the request as originally submitted, contains the notations described above but lacks a signature. Upon receiving notification of Shane Johnson's appeal, the County Clerk advised that his office received the request on April 19, 2010. Quoting the language of KRS 61.872(2), pursuant to which "[t]he official custodian may require written application, signed by the applicant and with his name printed legibly on the application . . . .," the County Clerk noted that the "request did not bear a signature. " The County Clerk further explained that he "attempted to call Shane Johnson at the number supplied, (606) 215-1238, and reached the voice mail of a Jackson individual." He mailed the aforementioned response via "certified mail, receipt requested and restricted delivery," on April 22, 2010, "stating that Johnson had not complied with the statute." Mr. Johnson signed the return receipt on April 26, 2010, as the documentation attached to the County Clerk's response confirms. Also included with his response was a copy of the request attached to Mr. Johnson's appeal "only now bearing Johnson's signature, as well as, Johnson's Complaint [appeal] dated April 20, 2010," one day after the County Clerk received his request.
In sum, the County Clerk explained, he attempted to contact Mr. Johnson "and request that his application be signed. Contact was attempted both via written letter and via telephone. The number supplied was incorrect, as stated above, or Johnson is not using his real name." Accordingly, if this matter is not resolved in his favor, the County Clerk requests that Mr. Johnson come to his office 2 "and provide a picture identification and sign for the documents." Based upon the following, this office finds that the County Clerk acted in accordance with KRS 61.872(2) when he required Mr. Johnson (the applicant) to sign his request; however, the County Clerk violated the Act by imposing a requirement for inspection beyond those identified at KRS 61.872(2).
As indicated, resolution of this appeal hinges on the statutory language found at KRS 61.872(2), pursuant to which:
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.
(Emphasis added.) At page 4 of 94-ORD-101, the Attorney General recognized:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
Both KRS 61.872(2) and prior decisions by this office support the County Clerk's position that a signature may be required in order to trigger the requirements of KRS 61.880(1) . See 07-ORD-126; 04-ORD-048. In addressing the sufficiency of a request, the Attorney General has consistently held that even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2 (emphasis added); 06-ORD-112; 01-ORD-247; 01-ORD-173; 94-ORD-101; OAG 76-588. Insofar as Mr. Johnson apparently failed to sign his original written request, he failed to comply with KRS 61.872(2).
That being said, Mr. Johnson subsequently cured this procedural deficiency and the County Clerk is now in possession of a signed copy of his request. However, the County Clerk indicated that Mr. Johnson would need to "provide a picture identification and sign for the documents." In
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Court observed that the relevant "analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Accordingly, this office has consistently recognized that "generally speaking, neither the identity of the requesting party nor his purpose in submitting a request is legally relevant." 10-ORD-062, p. 7.
Of particular significance on the facts presented, the analysis from 94-ORD-101 quoted on page 3 echoed an earlier open records opinion stating that "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 95-ORD-60 and 95-ORD-33. In other words, public agencies cannot reject a request, or avoid statutory duties, merely because the requester did not use a particular form or employ specific legal terminology. 01-ORD-247, p. 3. Nor is the applicant's "failure to utilize the 'formal process' established by the [public agency] " a proper basis for rejecting a request to inspect public records. 04-ORD-048, pp. 4-5. Significantly, in 95-ORD-33 this office specifically held that "a person requesting public records is not required to state why he wishes to inspect the records or to produce an I.D. in order to see the records." Id., p. 1 (citation omitted), citing 94-ORD-101 and OAG 81-345. As in each of these decisions, the Attorney General finds that in the absence of a statutory or regulatory basis for imposing such a condition, the Clerk "is acting contrary to the intent of the Open Records Act "by imposing unauthorized requirements on records access." 95-ORD-33, p. 1.
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. Shane JohnsonDean JohnsonElmer Cunnagin, Jr.
Footnotes
Footnotes
1 In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. 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.
2 Pursuant to KRS 61.872(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.
(Emphasis added.) Because Mr. Johnson apparently lives in Lily, Kentucky, which is located in Laurel County, Kentucky, the County Clerk is authorized to require inspection of the records prior to providing him with copies assuming that his "principal place of business" is also located outside Laurel County.