Opinion
Opinion By: Daniel Cameron,Attorney General;Matthew Ray,Assistant Attorney General
Open Records Decision
Glenn Hayden ("Appellant") asked the Board for the official personnel action and activity reports or any equivalent documents related to specific Board employees' promotions. In a timely response, the Board informed the Appellant that the requested records were available for inspection at its office during normal business hours. The Appellant now appeals, and claims that the Board violated the Act when it required him to inspect the records in-person instead of emailing him responsive records.
Under KRS 61.872(2)(a), "[a]ny resident of the Commonwealth shall have the right to inspect public records." Inspection of public records on the agency's premises is the basic right provided by the Act. " Upon inspection , the applicant shall have the right . . . to obtain copies of all public records not exempted by the terms of KRS 61.878." KRS 61.874(1) (emphasis added). Thus, under KRS 61.874(1), a requester's right to obtain copies of records is conditioned on his prior inspection of those records. See, e.g. , OAG 76-375 (finding that "[t]he right to have copies of records is ancillary to the right of inspection and does not stand by itself," and therefore "[i]f a person has not inspected the records he desires to copy[,] there is no requirement that copies of any records must be delivered to him"); OAG 82-629 (finding that the Act "does not contemplate that a public agency shall send requested records to a person who has not inspected them").
In 1992, the General Assembly enacted KRS 61.872(3), which provides that public records may be inspected either "[d]uring the regular office hours of the public agency" or "[b]y receiving copies of the public records from the public agency through the mail." The second alternative, however, is not available to all requesters. Rather, "[t]he 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 or she precisely describes the public records which are readily available within the public agency." KRS 61.872(3)(b) (emphasis added). Thus, a person who does not live or work outside the county where the records are located is not entitled to receive copies without having first inspected the records in person at the suitable facility provided by the agency. See
Commonwealth v. Chestnut , 250 S.W.3d 655, 661 (Ky. 2008) (finding that "KRS 61.872(3)(b) seemingly applies when someone residing outside the county in which the public records are located desires to receive copies of the public records through the mail," not a person "in the same county as the records kept by the custodian"); see also 97-ORD-46 (finding that "[a] requester who 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"); 92-ORD-1620 (finding that KRS 61.872(3)(b) "reflects a concern that persons residing outside the county where the records are maintained should not be compelled to travel great distances in order to inspect those records").
The District asserts that the Appellant resides or has his principal place of business within Graves County, where the records are located. The Appellant does not refute the District's assertion. Thus, the Appellant's right to obtain copies of the records is merely incidental to his right under KRS 61.874(1); i.e. , the right to obtain copies "[u]pon inspection." Accordingly, the District did not violate the Act when it made the requested records available for the Appellant's inspection during its regular business hours, as opposed to sending him copies of the records. 1
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Daniel Cameron
Attorney General
Matthew Ray
Assistant Attorney General
Footnotes
Footnotes
1 The Appellant also claims that in a prior request he sought other records related to the promotion of a different District employee. The District claimed in response to that request that no responsive records existed. However, the Appellant did not submit a copy of that earlier request or the District's response. Therefore, this Office has no jurisdiction to decide whether the District complied with the Act in connection to the Appellant's earlier request. See KRS 61.880(2)(a).