Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville and Jefferson County Metropolitan Sewer District violated the Kentucky Open Records Act in the disposition of Kevin Wilkins' December 7, 2010, request to be provided with "the name, date, [and] the annual pay of any [MSD] employee that accuses me of threatening them" and "information on" the "ongoing driveway dispute" referenced in a separate e-mail 1 attached to his request as well as Brian Bingham's annual pay. MSD provided a timely written response 2 to Mr. Wilkins' request in which Stephanie Harris, Assistant Legal Counsel, agreed to provide him with "annual pay records pertaining to Brian Bingham" upon receipt of a reasonable copying fee of .10 [cents] per page plus postage (consistent with KRS 61.872(3)(b) and 61.874); however, Ms. Harris advised Mr. Wilkins in response to the remainder of his "request for information," which MSD was not statutorily obligated to honor, that he needed to "describe with reasonable particularity the records" being sought. Although the Kentucky Supreme Court rejected imposition of such a standard relative to requests for inspection of public records in Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008), Mr. Wilkins requested to receive copies of any responsive records in lieu of conducting on-site inspection and thus must "precisely describe" the records per KRS 61.872(3). This he did not do and MSD may therefore require him to inspect any existing records which are potentially responsive to his request prior to providing him with copies.
Early on, this office clarified that "[t]he 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; 04-ORD-144. Accordingly, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has often recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81.
Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records") (emphasis added), validates this position. In short, MSD is not statutorily required to honor a request which is properly characterized as a request for information such as the request made by Mr. Wilkins though MSD could presumably identify and locate records which may contain some of the requested information such as employees' annual pay (assuming the employees are identified) and/or existing records pertaining to his ongoing dispute with MSD "over a driveway restoration issue."
Public agencies are, in the alternative, generally required to make any non-exempt records that may contain the information sought available for inspection, assuming that any exist. "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 when a requester is unable to identify the records sought for inspection with adequate 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.
That being said, MSD did not violate the Act in declining to provide Mr. Wilkins with copies of records because Mr. Wilkins did not "precisely describe" those records per KRS 61.872(3)(b) . In 99-ORD-63, for example, this office was asked to determine whether the Breathitt County Clerk had violated the Act in refusing to honor a request for "any and all coal leases" containing specified name variations. Although the Clerk erred in failing to cite the applicable statutory exception, this office affirmed his disposition of the request since the requester had not satisfied the requirements of KRS 61.872(3)(b), and was therefore not entitled to receive copies of public records by mail. Id., p. 3. Such is the case here. Pursuant to KRS 61.872(3)(b):
(1) 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.
In sum, the Open Records Act contemplates access to records "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. " 03-ORD-067, p. 4. The Act makes no mention of sending records to a requester via facsimile transmission and certainly does not require it. In any event, the underlying rationale of KRS 61.872(3)(b) applies with equal force regardless of whether Mr. Wilkins requested to have the records mailed or faxed as the critical factor is the lack of prior inspection. A requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011.
The limited evidence of record is conflicting as to where Mr. Wilkins resides. MSD has 7600 Deep Hollow Road, Louisville, KY 40291 as Mr. Wilkins' address of record; however, this office was provided with a mailing address of 989 Locust Grove Road, Shelbyville, KY 40065. Assuming that Mr. Wilkins resides in Louisville, where any responsive records are located, he does not satisfy the threshold requirement of KRS 61.872(3)(b), and MSD may require him to conduct on-site inspection of records which are potentially responsive prior to furnishing copies. See 08-ORD-132. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) 3 merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. 4 In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in "definite, specific and unequivocal terms" the records he wishes to access by mail, i.e. without on-site inspection. Id. This Mr. Wilkins has not done. However, Mr. Wilkins is only required to satisfy the lesser standard of KRS 61.872(2) in order to conduct on-site inspection, which MSD, as noted, is authorized to require prior to providing him with copies. 5
Even assuming that Mr. Wilkins resides and/or works in a different county, MSD would still not be required to mail copies because the records are not "precisely described" nor can the records be properly characterized as "readily available. " This final requirement "permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, public agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant." 99-ORD-63, p. 3. As the Attorney General first observed in OAG 76-375, "[public] agencies and employees are the servants of the people . . . , but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." Id., p. 4; 99-ORD-63. Consequently, this office has consistently held that if the records which the applicant requests to access by receipt of copies via mail "cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them." 99-ORD-63, pp. 3-4. Under such circumstances, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. " Id., p. 4.
As in 99-ORD-63, the requester has failed to describe the records he wishes to access by receipt of copies in "definite, specific, and unequivocal" terms, and, therefore, fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not "precisely described," the records cannot accurately be characterized as "readily available" within MSD. Accordingly, MSD may require Mr. Wilkins to conduct an on-site inspection of the records prior to furnishing him with copies. Where a requester cannot identify the records sought with precision, or wishes to extract information that has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency . . . ." OAG 76-375, p. 3.
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.
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