Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Robert D. Cron appeals the Office of the Butler County Sheriff's disposition of his open records complaint that the office failed to comply with 61.876(1) and (2) by failing to adopt and post rules and regulations, conforming to the Open Records Act, that govern access to the nonexempt public records of his office. In a separate appeal, presenting a different issue but arising from a common nucleus of facts, Mr. Cron objects to a statement made by a member of the Sheriff's staff. The staff member advised him that, although she would make copies of records responsive to his most recent request, he would be required to make his own copies, at a cost of ten cents per page, in the future. It was unclear to Mr. Cron at this time, and remains unclear, whether the Sheriff's office intended to furnish him with paper and duplication equipment or if the office expected him to take the records elsewhere for duplication and assess a ten cents per page charge when it incurred no actual costs. We consolidate these appeals, Open Records Log Number 201500425 and 201500430, for purposes of analysis.
The Sheriff's office responded, by counsel, in a letter dated November 4, 2015, which either did not reach Mr. Cron before he initiated his undated appeal or which he did not attach to those appeals. 1 Counsel explained that he had been occupied elsewhere on public business, but advised:
I seem to recall that I dealt with the issue of the posting of Open Meetings/Open Records rules and regulations several years back. I suppose that there has been enough turnover in office holders and office positions and perhaps even the remodeling of offices that it is probably appropriate to give a reminder to all office holders about the responsibilities. 2 The main purpose of this letter is simply to indicate that I have received your letters but I have not had an adequate opportunity to even read them much less address the content. I will do my best to try to send you a more suitable response within the next two weeks or so. I hope this is satisfactory.
Counsel does not indicate that he later provided a more suitable response.
After receiving this office's notification of receipt of Mr. Cron's appeals, counsel supplemented his earlier response on behalf of the Sheriff. Counsel explained that Mr. Cron's letters reached him "at a particularly busy time" and that he treated them "as simply a friendly reminder. " Although he did not respond to Mr. Cron's allegation that a member of the Sheriff's staff notified Mr. Cron that he would be required to make his own copies in the event he filed additional open records requests, he reiterated that it was his belief that "at some time in the past," he made:
a mass mailing to numerous agencies of Butler County government explaining the requirement to adopt open records policies and procedures and to display them in the office. Unfortunately, there has been staff turnover in my office as well and at this time I cannot recall the timing of when that occurred.
While Mr. Cron may disagree, I believe that the proposed action as set forth in the November 4, 2015, letter addresses the issues set forth in the October 29, 2015, letters. If the proposal as outlined in the November 4, 2015, letter does not address the issues then I am going to need a further clarification.
We disagree. This open records decision will provide the requested clarification.
KRS 61.876(1) and (2) provide:
(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:
(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.
The Attorney General has described these rules and regulations as a "'how to' for persons who wish to submit an open records request." 94-ORD-12, p. 4, noting that the statutes' aim is to ensure that a public agency "educate the public on its particular policies and practices" with regard to records access. Id. A public agency "must adopt rules and regulations pertaining to its open records policy, or it may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to its particular needs." OAG 78-340, cited in 14-ORD-172 and 13-ORD-074.
KRS 61.876(1) and (2) are not permissive statutes, compliance with which may be prompted by reminder. They are mandatory statutes to which an agency must strictly adhere. Failure to adhere has, on multiple occasions, resulted in an adverse ruling from this office. For example, in 15-ORD-198 this office determined that a city clerk failed to comply with the Open Records Act 3 by failing to adopt and display rules and regulations required by KRS 61.876(1) and (2) "prior to the date on which the complaint was made." We rejected the city's argument that it was not required to respond, in writing and within three business days, to complaints alleging failure to comply with KRS 61.876(1) and (2). At page 4 of 15-ORD-198, we observed:
KRS 61.876(1) "establish[es] a minimum standard for agency compliance." 95-ORD-49, p. 4. An agency:
Id. As long as those rules and regulations do not fall below the minimum standard set forth in KRS 61.876(1), and are properly displayed in a prominent location accessible to the public as required by KRS 61.876(2), the agency fulfills its duty under the law. [Footnote omitted.]
Because the record on appeal is devoid of evidence refuting Mr. Cron's claim of the Sheriff's noncompliance with KRS 61.876(1) and (2), we find that the Office of the Butler County Sheriff failed to comply with these open records provisions within the meaning of KRS 61.880(4).
We decline, however, to assign error to the Office of the Butler County Sheriff for a statement attributed to a staff member upon which the staff member did not act. The staff member is alleged to have said that Mr. Cron could be required to make his own copies at a cost of ten cents per page. According to Mr. Cron's statement of facts, she did not require him to make his own copies, but instead made the copies herself. Accordingly, no actual controversy exists between these parties, and the Office of the Attorney General declines to render a decision on a hypothetical issue.
Either party may appeal this decision 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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