Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Betty A. Pendergrass initiated this appeal challenging the disposition by the City of Bardstown ("City") of her November 30, 2016, request for "the total amounts outstanding for the City's General Obligations bonds as of June 30, 2016 and the total original issued for those bonds." In addition, Ms. Pendergrass requested "the same information for the total Water and Sewer Revenue Bonds[, information that] is in a note disclosure in the annual audit report that the auditors are preparing." In a timely written response per KRS 61.880(1), City Clerk Barbara Bryant advised Ms. Pendergrass that she had identified and located two documents responsive to her November 30 request; Ms.
Bryant further advised Ms. Pendergrass that she could inspect said records during regular business hours Monday through Friday and, upon request and payment of the associated fee of ten cents per page, receive copies. On appeal Ms. Pendergrass alleged that the City "is violating [the Open Records Act] on a number of fronts as well as the civil rights of employees, elected officials, and citizens." Ms. Pendergrass acknowledged that the City has "probably followed the 'letter of the law.'"
Upon receiving notification of Ms. Pendergrass's appeal from this office, Bardstown City Attorney Timothy C. Butler responded on behalf of the City. Mr. Butler correctly observed that Ms. Pendergrass requested information rather than public records. Relying upon prior Open Records Decisions, Mr. Butler maintained that a public agency is not obligated to comply with a request for information as opposed to a request for public records. In the case at hand, Mr. Butler continued, the City Clerk "was aware that the information sought was available in a public record and provided the appellant Ms. Pendergrass the opportunity to come review the records or obtain copies. Ms. Pendergrass did not avail herself of that opportunity but rather filed the current appeal." Mr. Butler correctly noted that "various other allegations contained in the appeal do not appear to be the subject of a specific" request. Inasmuch as the peripheral concerns raised on appeal cannot be resolved in this forum, the analysis that follows will address only the alleged violation of the Open Records Act. See KRS 61.880(2).
Resolution of this appeal turns on the application of KRS 61.872(3), pursuant to which:
A person may inspect the 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. 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. . . .
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, such as Ms. Pendergrass, may be required to inspect 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; 09-ORD-106.
Based upon the evidence of record, it appears that Ms. Pendergrass resides and works in Bardstown, Kentucky, a city in Nelson County; likewise, the records are located in Bardstown. Accordingly, Ms. Pendergrass cannot satisfy the threshold requirement of KRS 61.872(3)(b), and the City was permitted to require her to conduct onsite inspection of records potentially responsive to her November 30, 2016, 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) 1 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. See
Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008). A request for information, 2 such as that of Ms. Pendergrass, certainly does not "precisely describe" the records being sought, even assuming that it satisfies KRS 61.872(2). Nevertheless, the City agreed to provide her with access to existing records containing the requested information during regular office hours per KRS 61.872(3)(b) and, upon receipt of payment (in accordance with KRS 61.874), also provide her with copies if desired. Nothing else was required. See 12-ORD-128. This office has no basis upon which to find that the City violated the provisions of the Open Records Act.
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 must 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 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."
2 See 11-ORD-007, pp. 3-4.