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 Boone County Judge/Executive violated the Kentucky Open Records Act in the disposition of Terrance Donoghue's May 20, 2013, request for records. For the reasons that follow, we do not find that a violation of the Act has occurred.
Mr. Donoghue's May 20 request constituted one paragraph of a longer letter addressed to the Boone County Judge/Executive and the county commissioners. The relevant paragraph stated:
Please consider this letter as my official request pursuant to the Kentucky Open Records law for any financial documents, spread sheets or memorandums that provide information concerning projected [sanitation district] rate increases provided to the Judge-Executives, County Administrators, Deputy Judge-Executives or other officers of the county from 2007-present.
(Emphasis omitted.)
On May 22, 2013, County Administrator Jeffrey S. Earlywine sent a letter to Mr. Donoghue reading as follows:
On Monday, May 20, 2013 I received a copy of your hand-delivered letter, addressed to the county's elected body, addressing concerns over the proposed SD1 rate increase. Since the letter also included an open records request it has been forwarded to my office for review. Usually we direct citizens to utilize our formal request form located on the county web site www.boonecountyky.org. I have responded via letter since your request did not include any telephone number or email address.
If you would complete and return the open records request form we will process your request in a timely fashion. The county's policy includes a copying cost of $ 0.10 cents per page. Is there a limit on the amount of information you are willing [to] pay for? Would you prefer to first inspect the information at our office before requesting copies of any specific items? Please advise regarding your preference in this matter and feel free to contact me with any additional questions you may have. Thank you.
Mr. Donoghue initiated an appeal to this office on May 28, 2013, construing Mr. Earlywine's letter as a statement that the County Judge/Executive was "unwilling to provide the information unless I am witting [ sic ] to go on line and download a form, fill it out and return it." He added: "The request of [ sic ] I have submitted cannot be construed as ambig[u]ous, it was clear what information I was seeking from the Judge-Executive."
The County's response to this appeal was submitted on June 14, 2013, by County Attorney Robert D. Neace. Mr. Neace states that "Boone County has never taken the position that Mr. Donoghue is required to use the form provided to obtain information under the Open Records Act. " He points out that the main purpose of Mr. Earlywine's letter was to ascertain whether Mr. Donoghue was seeking copies or inspection of records, and to notify him of the copying costs.
KRS 61.872(3) provides that a person may inspect 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.
We find that Mr. Donoghue's request was unclear as to whether he wished to inspect the records in person or to receive copies by mail. KRS 61.874(1) provides that "[w]hen copies are requested, the custodian may require ? advance payment of the prescribed fee, including postage where appropriate." Therefore, the county could properly have advised Mr. Donoghue of the required payment, if his request had clearly asked for copies.
It would subvert the intent of the Open Records Act, however, within the meaning of KRS 61.880(4), for the county to require the use of a special form for making a written request. As the Attorney General observed in 94-ORD-101:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
We further stated, in 07-ORD-257, that:
any local policy or procedure that deviates from the specific requirements of the Open Records Act constitutes a violation of the Act. This includes a requirement that the requester utilize an open records request form developed by the agency.
In this case, we agree with the County Attorney that Mr. Earlywine's letter did not explicitly require Mr. Donoghue to use the request form on the county's website, although we note that its wording could have understandably been construed that way by Mr. Donoghue.
The central point of the letter, in any event, was to clarify in what manner Mr. Donoghue wished to obtain access to the public records. Without this clarification, which apparently still has not been forthcoming, the County Judge/Executive is unable either to schedule a time for Mr. Donoghue to inspect the records or to request prepayment of the copying charges. We therefore find that the county's response to Mr. Donoghue's request was reasonable and did not violate the Open Records Act.
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.
Distributed to:
Mr. Terrance DonoghueMr. Jeffrey S. EarlywineRobert D. Neace, Esq.