Request By:
Mr. Gayle B. Robbins
Graves County Attorney
Graves County Courthouse
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of April 14 in which you relate that a local option petition filed pursuant to KRS 242.020 was found not to contain sufficient signatures by the Graves County Judge/Executive, and was as a consequence declared invalid by him. Under the circumstances, the following questions are raised:
"(1) If a local option petition is filed and ruled invalid by the county judge/executive, is it still to be retained as a public record or is it to be returned to the petitioners?
(2) If the petition is kept as a public record, is it kept by the county clerk or the county judge/executive?
(3) Do the petitioners have to start over and submit an entirely new petition or can they just obtain the additional names to supplement the original petition?
(4) How much can be charged for a copy of the petition?
(5) If a petition which has been ruled invalid by the county judge/executive is made public by the county clerk, can the county clerk be held liable in a civil suit filed by one of the signers who objected to the petition being made public after it was ruled invalid? "
In response to questions one and three, we believe that once a petition for a local option election is filed and duly recorded, it becomes a public record irrespective of whether or not it is found to meet the statutory requirements for validity and cannot be withdrawn. OAG 80-450, copy enclosed, declares that local option petitions filed with the clerk are public records under the open records act, namely KRS 61.870 to 61.884 as well as KRS 242.020 quoted therein. Also attached is OAG 73-134 covering this subject.
Referring to 42 Am. Jur. 2d, Initiative and Referendum, Section 36, it is declared to be the general rule that once the petition has been filed with the proper officer it cannot be removed from his custody for any purpose, and particularly for the purpose of adding additional names and addresses. From this section we quote the following excerpt:
". . . Generally, after a petition has been filed with the proper officer, it may not be removed from his custody for the purpose of adding addresses and precinct numbers to identify signers and allow their signatures to be counted."
Next, referring to
Morgan v. Walker, 289 Ky. 92, 158 S.W.2d 5 (1941), we find a case involving a local option petition that was drawn up but abandoned and presumably never filed. The court declared that the names on the abandoned petition could not legally be attached to a second petition that was filed for a later election.
Thus, in view of what we have said above, concerning the fact that a petition duly filed and subsequently declared upon investigation to be invalid nevertheless becomes public record and cannot be removed, those favoring a referendum on the subject would be required to start over and submit an entirely new petition.
In response to your question as to whether the petition is to be kept by the county clerk or the county judge/executive, our answer would be the clerk as he is the one with whom the petition is required to be filed pursuant to KRS 242.020(1).
As to how much can be charged for a copy of the petition, we refer you to KRS 61.874(2) which reads as follows:
"The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof not including the cost of staff required."
In response to your fifth question, a county clerk cannot be held liable in a civil suit for making the petition available to the public for inspection or having a copy made since by law it becomes a public record when it is filed subject to both inspection and copying. The mere fact that it is subsequently declared invalid for insufficient compliance with the statute, would have no bearing on this question in our opinion.