Request By:
Mr. Wendell P. Robinson, Sr.
Executive Director
Louisville-Jefferson County
Community Action Agency
305 West Broadway
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Garl Miller, Assistant Attorney General
The Courier Journal and Louisville Times Company, through its attorney, Jon L. Fleischaker, has appealed to the Attorney General under KRS 61.880 the denial of inspection of certain public records in your custody as Executive Director of the Louisville and Jefferson County Community Action Agency. The records were requested to be inspected by a reporter, Delma J. Francis, and are described as follows:
1) All records relating to locations of any and all work performed since January, 1977
2) All records relating to the identities of agency employees and CETA employees employees assigned to the agency who worked on said projects; all records relating to the amount and time of said work.
3) All records relating to materials purchased by CAA with regard to the winterization/weatherization program during the period in question and all records regarding disposition and use of said materials.
The letter of appeal was accompanied by the letter of request addressed to you by Ms. Francis and your letter of denial. In your letter you state that you are relying upon a momorandum from Mr. Fred Mitchell, Training Coordinator, and you enclosed a copy of said memorandum. Neither in your letter nor in the memorandum is any reference made to a specific provision of the Open Records Law, KRS 61.870-61.884, as to any exception therein which would permit the denial of inspection of the records. In KRS 61.880(1) it is provided, among other things,
"Any 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."
In subsection (2) of the same statute it provided that a copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General. From the information at hand it appears that you did not give a specific reason for denying inspection of the records and did not send a copy of your denial to the Attorney General.
The memorandum from Mr. Fred Mitchell to you on which you rely contains the following paragraph:
"What we are doing is requesting that persons requesting information notify our staff as to what information they need and we will research that information and return same to the requesting individual in writing. While we do not wish to disrupt the flow of work within the agency we would not want to in fact be liable for any confidential information released on weatherization persons."
The above quoted paragraph indicates a misunderstanding of the Open Records Law. The Open Records Law does not mandate that information must be given out by an agency but mandates that a private individual may inspect first hand public records of an agency unless the records fall under one of the exemptions provided by KRS 61.878(1). When a person requests to inspect public records, and the records are not exempt, the proper reply would be to designate a time and place when the person may inspect the records under due safeguard. KRS 61.872 reads as follows:
"(1) All 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. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
"(2) Any person shall have the right to inspect public records during the regular office hours of the public agency. The official custodian may require written application describing the records to be inspected.
"(3) If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
"(4) If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
"(5) If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence."
It is quite plain from this statute that a person has the right to inspect public records first hand and not just to receive information which an agency wants to give him.
The letter of appeal disclaims any desire to obtain private information relating to clients of the Community Action Agency. However, we know of no reason why the public may not inspect all the files of your agency. If there is such a reason it should be stated with proper reference to the law which makes such files confidential. There is no general law protecting the privacy of salaries or benefits received from public agencies. On the contrary the public is granted access to such information by the Open Records Law. A receiving of public benefits is not a matter of personal privacy as referred to in KRS 61.878(1)(a).
In summary, it is the opinion of the Attorney General that you have failed to comply with the Open Records Law in responding to the request of Delma J. Francis, reporter for the Louisville Times. We believe that you should have allowed Ms. Francis to inspect the records she requested as listed in this opinion. We further believe that if any records are denied inspection you should state a reason for the denial making specific reference to the exception provided by the law.
In short, it our opinion that you agency has not acted consistent with the provisions of KRS 61.870-61.884.
As directed by the statute we are sending a copy of this opinion to the requester. KRS 61.880(5) provides that if the Attorney General upholds, in whole or in part, the request for inspection, the public agency involved may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public record is maintained.