Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
John R. Likins initiated this appeal by letter dated August 14, 2014, enclosing a copy of his request directed to Chief Executive Officer Gary Woosley, Caney Creek Watershed Conservancy District ("District"), on October 27, 2012. In said request, Mr. Likins asked for "the location where moneys was [sic] spent the years of 2007, 2008, 2009, 2010, & 2011." 1 Upon receiving notification of Mr. Likins' appeal from this office, Grayson County Attorney Clay Ratley responded on behalf of the District.
Mr. Ratley advised that, "According to my records, a response was provided to Mr. Likins within the applicable three (3) day timeframe." Attached to his August 29, 2014, letter was an unsigned copy of the letter his office drafted and mailed to Mr. Likins in 2012. 2 In said letter, signed by Jerry Fraim, 3 whose association with the District is not explained, the District advised Mr. Likins that, "since you are physically located in the county," this agency "can allow you to inspect the above requested records at a mutually agreeable time. As such, please contact Brent Miller at 270-259-3716 to schedule an appointment at the Farm Service Agency, 119 Commerce Drive, Leitchfield, KY 42754 during regular business hours. " 4 In closing, the District correctly observed that "a public agency is not required to compile information or to create a document that does not already exist in response to an open records request."
Elaborating upon the agency's position, Mr. Ratley explained that, "Since the [District] meets in our office at the Farm Service Agency centrally located in Leitchfield, Kentucky, in our county[,] I felt that it was most appropriate for Mr. [Likins] to view these documents at that location. Also, please note that when this request was made, Mr. [Likins] provided an address in the county." Having contacted the Farm Service Agency, Mr. Ratley confirmed that Mr. Likins had visited that office to view the records in dispute, inspected the records, and made copies on April 24, 2013. Accordingly, the District maintained that it complied with Mr. Likins' October 27, 2012, request. When viewed in light of KRS 61.872(3), the limited evidence presented validates the District's position.
Resolution of this appeal turns on KRS 61.872(3), pursuant to which:
(1) A person may inspect the public records:
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; 09-ORD-106. Therefore, 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.
Based upon the evidence of record, it appears that Mr. Likins resided in Caneyville, Kentucky, a city in Grayson County, when he submitted the October 27, 2012, request; the District is located in Leitchfield, which is also located within Grayson County, Kentucky. Accordingly, Mr. Likins did not satisfy the threshold requirement of KRS 61.872(3)(b), and the District was permitted to require him to conduct onsite inspection of records potentially responsive to his request prior to furnishing copies. See 08-ORD-132; 09-ORD-106. 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) 5 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. Although Mr. Likins currently resides in Blue Springs, Missouri, the address that he provided on the October 27, 2012, request was Caneyville, Kentucky. The District permitted him to conduct onsite inspection of records containing the requested information during regular office hours per KRS 61.872(3)(b). Nothing else was required. Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 Mr. Likins noted that his "first request was sent to Brent L. Miller, Leitchfield, Ky. on 9-19-12. Have not received a response from Brent Miller." Mr. Likins did not include a copy of his September 19, 2012, request; accordingly, this office is precluded from addressing issues related to said request per KRS 61.880(2)(a).
2 Mr. Ratley noted that "the date on this letter was automatically generated to the day that it was printed, but the original was, to the best of my knowledge, mailed as per the statute time limitations." The Attorney General is unable to conclusively resolve factual disputes relating to actual delivery and receipt of a request; however, absent objective proof to the contrary, this office does not have any reason to question the veracity of either the District or Mr. Likins, and therefore finds no violation in this regard. In sum, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate. See OAG 89-81; 03-ORD-061; 11-ORD-209. Without further explanation, it appears that Mr. Likins may have been challenging the inaction of the agency in response to his initial request which, as explained above, is not in dispute.
3 Pursuant to KRS 61.880(1), the response "shall be issued by the official custodian or under his authority[.]" Accordingly, this office assumes that Mr. Fraim is either the District's custodian or was acting under his authority.
4 In the interest of absolute clarity," this office reiterates that Mr. Likins "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the [agency]." 02-ORD-094, p. 5; 10-ORD-213. In construing KRS 61.872(3), mandating that public records be accessible by the public "during the regular office hours of the public agency," this office has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted). The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours." Id. Under those circumstances, the Act contemplates that the public agency and the requester will agree upon a mutually convenient time and place for the requester to inspect public records. Id., pp. 4-5 (citation omitted).
5 In relevant part, KRS 61.872(2) provides that "[a]ny 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."