14-ORD-198

14-ORD-198

September 30, 2014

In re:        Peter Trzop/Nelson County Clerk

Summary:        County clerk could require person from the same county to inspect records in person; fee of 50 cents per copy was authorized by KRS 64.019(2)(a).

Open Records Decision

        The question presented in this appeal is whether the Nelson County Clerk violated the Open Records Act in the disposition of Peter Trzop’s request for “copies of public records on the appointments made by County Judge Dean Watts.”  Mr. Trzop had previously requested these records from the County Judge/Executive on August 15, 2014,¹ and was told that the records were in the custody and control of the Nelson County Clerk. He then requested the records from the clerk on August 20, 2014. We hereby consolidate this appeal with one filed simultaneously by Mr. Trzop against the Nelson County Judge/Executive over the same records, as the law and the facts are substantially related. For the reasons stated below, we find no violation of the Open Records Act.

        County Judge/Executive Dean Watts replied to Mr. Trzop’s request on August 18, 2004, stating that “[a]ppointments made by me and approved by Fiscal Court Order books located at the Nelson County Clerk’s office….  I do not keep a separate list in my office of these appointments since the Fiscal Court orders are permanent records.”  He further advised that his “administrative assistant … prints out the appointment orders using a standard form, and she merely changes the names and/or related information. The appointments are then provided to the media and Fiscal Court.”  Following this response, Mr. Trzop addressed his request to the Nelson County Clerk as suggested.

        In her response on August 22, 2014, Nelson Circuit Clerk Elaine A. Filiatreau stated that “all board appointments are recorded in Nelson Fiscal Court minutes. These records are available for inspection here in the County Clerk’s office during any hours in which we are open for regular business.”  She advised that copies could be made for 50 cents per page, and that her office “would be happy” to make copies for him “based on very specific information.”  Mr. Trzop initiated appeals of both responses to the Attorney General’s office on August 25, 2014.

        When the person to whom an open records request is directed does not have custody or control of the records, “that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency’s public records.”  KRS 61.872(4). Although he did not mention the clerk by name, we conclude that under these facts Judge Watts sufficiently fulfilled the intent of KRS 61.872(4) by informing Mr. Trzop that they were located in the office of the Nelson County Clerk.²  Therefore, the County Judge/Executive did not violate the Open Records Act.

         With regard to the Nelson Circuit Clerk, KRS 61.872(3) provides in part that public records may be inspected:

(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.

A person requesting records from within the same county “may be required to inspect the records prior to receiving copies.”  03-ORD-067. The only address provided by Mr. Trzop is in Bardstown, within Nelson County. Therefore, Ms. Filiatreau did not violate the Open Records Act by requiring Mr. Trzop to inspect the fiscal court’s records in person and locate those he wished to have copied.

        Mr. Trzop also complains that the rate of 50 cents per page for copies is unreasonable because the County Judge/Executive only charges 10 cents per page. County clerks are specifically authorized by KRS 64.019(2)(a), notwithstanding any other state statutes, to “collect a per-page fee, not to exceed fifty cents ($0.50) per page, for providing legal size or smaller paper copies of records or documents maintained by the clerk.”  Accordingly, the clerk is not bound by the limitations that KRS 61.874(3) might impose on the copying fee. We therefore find no violation of 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 proceeding.

                                                Jack Conway

                                                Attorney General

                                                James M. Herrick

                                                Assistant Attorney General

#372/#371

Distributed to:

Dr. Peter Trzop

Elaine A. Filiatreau, Clerk

Hon. Dean Watts

Matthew Hite, Esq.