Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Michael Murphy appeals the Gallatin County Planning Commission's response to his December 7, 2015, request to inspect and copy:
1. [t]he application from John and Zetta West for a zone change at 114 North Main Street from R-1 to R-3[;]
2. [a]ll drawings and or floor plans for the proposed housing unit to be located at 114 North Main Street[; and]
3. [a]ll emails and or any documents between [Gallatin County Planning Commission Administrator Winslow Baker] and the property owners John and Zetta West.
On behalf of the Commission, Mr. Baker responded to Mr. Murphy's request on December 9, 2015, advising Mr. Murphy:
I will not be issuing a building permit. [H]e will get that from Frankfort since it will be a commercial building. I will, however, be issuing a zoning permit once all fees are paid and Glencoe has had all their readings of the zone change. Enclose[d] find a copy of their zone request which was to be signed and, with their fee, mailed to me . . . .
Drawings will be done by an architect and sent to Frankfort.
I have not sent or received any emails from the West[s].
Dissatisfied with the Commission's failure to address each subpart of his request and to afford him the opportunity to conduct an on-site inspection of Commission records, Mr. Murphy initiated this appeal on December 14, 2015. He attached a photograph "taken during the public hearing" that, he asserted, "show[] Mayor Hampton holding the floor plans to the housing unit during the public hearing or special meeting."
In supplemental correspondence directed to this office, the Commission defended its response to Mr. Murphy's request, emphasizing that the Commission "provided copies of what we have and point[ed] Mr. Murphy in the right direction if we are not the keepers of other records." Mr. Baker referenced "Exhibit B," a December 21 letter addressed to the Attorney General in which Mr. Baker asserted that he "told [Mr. Murphy] several times that if he wants to inspect our records that [Mr. Baker] will come in at his convinces [sic] after hours or on weekends and make him copies of anything he wants." In the same letter, Mr. Baker explained that the Commission does:
not have a building inspector so all plans and drawings will go to Frankfort for commercial buildings. The State Building Inspector, not the local planning Commission[,] will have a file of the plans. The only permit I will issue is a zoning permit not a building permit.
This information was not communicated to Mr. Murphy until after he initiated this appeal.
Based on these facts we find that the Gallatin County Planning Commission's December 9, 2015, response to Mr. Murphy's December 7, 2015, request complied with KRS 61.880(1) as to the requirement of a written response within three business days. However, the response was deficient insofar as Mr. Murphy expressly asserted the right to inspect the Commission records identified in his request, and to make "copies of part or all requested document." His asserted preference for on-site inspection was ignored until after he initiated this appeal. 1
KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Commission's response was issued, in writing, within three business days of receipt but was otherwise deficient. The response addressed requests for records Mr. Murphy did not make and failed to address requests for records Mr. Murphy did make. Mr. Murphy did not request building permits. He requested "the application from John and Zetta West for a zone change at 114 North Main Street from R-1 to R-3." The Commission's statements about building permits were therefore gratuitous. The Commission enclosed a copy of the zoning change application but did not afford Mr. Murphy the opportunity to inspect the application prior to mailing him a copy. 2
Mr. Murphy requested "[a]ll drawings and floor plans for the proposed housing unit to be located at 114 North Main Street." 3 Without denying possession of drawings or floor plans, the Commission advised that "[d]rawings will be done by an architect and sent to Frankfort." Again, the Commission did not afford Mr. Murphy the opportunity to conduct on-site inspection of records relating to the zoning application change to confirm or refute its position. Finally, Mr. Murphy requested "[a]ll emails and/or any documents between [Commission Administrator Winslow Baker] and the proper owners John and Zetta West." The Commission responded, through Mr. Baker, that Mr. Baker had not "sent nor [sic] received any emails from the West[s]." The Commission did not address the existence of ""any [other] documents" exchanged by Mr. Baker and the Wests. Nor, again, did it afford Mr. Murphy an opportunity to inspect the zoning change application file to confirm its position. Because the timely written response was not clearly dispositive of Mr. Murphy's request, and because no offer of on-site inspection was extended to Mr. Murphy until after he appealed to this office, we find that the Commission's response was, to this extent, deficient.
In 98-ORD-96, this office stated that the public "has an absolute right to conduct on-site inspection of [nonexempt] public records. " Finding "ample support for this position in the Open Records Act itself and in open records decisions construing the Act," we concluded that the right of on-site inspection "is not a courtesy extended to the public . . . subject to the terms and conditions dictated by the . . . public agency. " We reasoned:
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." (Emphasis added.) Subsection (2) of that provision states that " [a]ny person shall have the right to inspect public records ." (Emphasis added.) Finally, KRS 61.874(1) provides that "upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof. . . . "
Focusing on an earlier open records decision, we observed:
In January, 1997, the Attorney General was again asked to determine whether a public agency has authority to prescribe the method by which access to documents is provided. In 97-ORD-12, the applicant asserted his right to inspect some 1300 files in the custody of the Cabinet for Public Protection and Regulation. The Cabinet resisted, prompting an appeal. At page 3 of that decision, this office observed:
Lest there be any lingering doubt the Attorney General emphatically stated, in closing, "we believe that the Open Records Act does , with limited exception, 4 . . . give the applicant . . . the authority to prescribe the method of records access." 97-ORD-12, p. 4 (emphasis in original); 97-ORD-166; 97-ORD-8; 97-ORD-6; 92-ORD-1439; OAG 89-81; OAG 89-76; OAG 81-198; 5 see also, 11-ORD-029; 11-ORD-056.
The Gallatin County Planning Commission violated KRS 61.872(1) and (2) by unilaterally treating Mr. Murphy's request to conduct on-site inspection of responsive records as a request for copies. Mr. Murphy retains the right to inspect nonexempt records that are responsive to his request, in suitable facilities provided by the Commission, to confirm or refute the nonexistence of the remaining records identified in his request.
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.
Footnotes
Footnotes
1 Mr. Murphy clearly asserted "the right to inspect[] public records retained by . . . the Gallatin County Planning Commission" and to obtain "copies of part or all of the requested documents."
2 The record on appeal gives no indication whether Mr. Murphy was assessed a copying/postage fee for the zoning change application.
3 On appeal, Mr. Murphy attached an unverified photograph that depicts an unidentified individual holding what appear to be drawings or floor plans before a group of unidentified individuals sitting at a table, one of whom appears to have her hand extended in a manner suggesting receipt. The Commission did not acknowledge the photograph in its supplemental response to Mr. Murphy's appeal or make any attempt to refute Mr. Murphy's claim that the photo proves the existence of floor plans.
4 Footnote 2, omitted from the quoted text, recognized that a requester, who resides or works in the county where the records are maintained, may be required to inspect public records before his request for copies is honored. KRS 61.872(3)(b).
5 98-ORD-69 also recognized, as a corollary to the primary holding, that public agencies "are required, by law, to make suitable facilities available for exercise of the right of inspection."