Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Bluegrass Workforce Investment Board violated the Open Records Act in the disposition of Charles E. Payne's March 12, 2012, request for access to, and an "electronic copy of, [a]ll records pertaining to the acquisition of the former Excepticon property located at 1393 Trent Blvd. in Lexington, Ky., . . . including but not limited to [f]inancial documents, . . . [i]ntended use of property, . . . [and c]onsultation with the State of Texas and/or other parties . . . ." Under each of these subparts, Mr. Payne provided parameters for the agency's search. Here, as in 12-ORD-107, we find that the manner in which Mr. Payne framed his open records request "did not render that request improper or relieve the Board of its duty to conduct a search for responsive records." 12-ORD-107, p. 5. That open records decision, involving the same parties, is dispositive of the issues presented in this appeal. "[J]udged by the on-site inspection standard found at KRS 61.872(2), Mr. Payne's request was 'adequate for a reasonable person to ascertain [its] nature and scope' and thereafter 'locate, and produce for inspection, the records sought.'" 12-ORD-107, p. 4, citing Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008) and 12-ORD-082. A copy of 12-ORD-107 is attached hereto and incorporated by reference.
The Bluegrass Workforce Investment Board raises the same defenses to this appeal that it raised in the appeal that resulted in 12-ORD-107. The Board asserts that Mr. Payne did not adhere to "BGADD's adopted Open Records Policy," that his requests were insufficiently specific, and that his requests were framed as interrogatories rather than records requests. To its credit, the Board agreed to provide a number of responsive records, albeit after Mr. Payne initiated this appeal. For example, the Board located and agreed to afford him access to the deed to the Excepticon property, the public notice of intent to purchase, minutes of Board meetings at which the purchase was approved, and itemized expenditures for improvements on the property. 1 Nevertheless, the Board continues to resist full disclosure.
For the reasons set forth in 12-ORD-107, we reject the Board's argument that it was relieved of its statutory obligations by Mr. Payne's failure to adhere to its "adopted Open Records Policy." 2 Moreover, our review of Mr. Payne's request does not substantiate the Board's position that it is insufficiently specific or framed as interrogatories. As in 12-ORD-107, we find that Mr. Payne's request satisfied the Chestnut standard for on-site inspection and conclude that the Board "is obligated to conduct a search for responsive records and produce them for Mr. Payne's inspection. " 12-ORD-107, p. 5.
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:
Charles E. PayneLenny Stoltz
Footnotes
Footnotes
1 Mr. Payne asked to inspect and obtain copies of records responsive to his request. The Board advised him how much he must pre-pay for copies, but did not indicate that the records could be inspected before he obtained copies. Given the fact that the Board relied upon 97-ORD-46 ( In re: Larry Bryson/Kentucky Labor Cabinet ) for a proposition of law that has been superseded by the Chestnut case as it relates to the specificity of an open records request, we trust that the Board is also aware that the Open Records Act, as interpreted in that open records decision, vests the requester with the right to demand on-site inspection before obtaining copies. KRS 61.872(3)(a). Mr. Payne may therefore elect to conduct on-site inspection before obtaining copies or to pre-pay for copies and access the records by receipt of copies in the mail.
2 In his letter of appeal, Mr. Payne notes the Board's apparent failure to comply withKRS 61.876. That statute provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
Because Mr. Payne did not present this issue to the Board in his original records application, it is not ripe for review by this office.