Request By:
Ms. Peggy Coburn
City Clerk, City of Jeffersonville
P.O. Box 127
Jeffersonville, Kentucky 40337
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. David Daniel has appealed to the Attorney General pursuant to KRS 61.880 your handling of his request to inspect public records.
While a copy of his letter to you has not been provided to this office, Mr. Daniel apparently made a written request to you in July of 1987 to inspect certain public documents he thought were in your custody.
You replied to Mr. Daniel as follows in a letter dated July 31, 1987:
"You requested to view the check register for the City of Jeffersonville for 1983 to present date, and also to copy information. We have no records for 1983, 1984, and 1985. I do have records to 1986 and 1987. You are welcome to see the audit reports for the years 1983, 1984 and 1985. As for copying information, you are welcome to view records, but time does not permit you to copy everything. Come by the office August 3, at 2:30 p.m. for the information for 1986 and 1987."
In his letter of appeal to this office Mr. Daniel states you merely responded that the city has no records. You did not state what happened to the records or who has the records that are to be maintained. Mr. Daniel also said that you were only allowing him thirty minutes to inspect the records as you told him to come to your office at 2:30 p.m. and your office closes at 3:00 p.m. He maintains that if he needed more time you would require him to submit another request and wait for another 2:30 p.m. appointment.
OPINION OF THE ATTORNEY GENERAL
Your response to the requesting party indicated in part that you did not have some of the records he requested. This is obviously a proper response as you cannot furnish that which you do not have or which does not exist. See OAG 83-111, copy enclosed. Your first obligation is to advise whether you have the documents requested and then, if you do, whether you will permit inspection, and if you will not allow inspection, you must set forth the statutorily authorized exception to public inspection which you are relying upon to deny the request.
It may be that the city should have kept the documents in question or perhaps the city has a legal obligation to keep certain records for certain periods of time. However, this opinion is limited to dealing with the Open Records Act and from the standpoint of that Act the documents either exist or they do not exist. The Open Records Act, in KRS 61.991(2)(a), does provide a penalty if a public official wilfully destroys a record with intent to violate the provisions of the Open Records Act. There is no proof or even any allegations that the missing records in this situation were destroyed for that reason. If you do not have certain requested records but you know who has them or where they are you are required to advise the requesting party of those facts. See KRS 61.872(3).
The second matter to be dealt with in this opinion concerns the manner in which you handled the requesting party's inspection of those records which do exist.
If the requesting party is correct that you limited his inspection of the existing records to a period of one-half hour one day a week then you have violated the terms and provisions of the Open Records Act.
KRS 61.872(1) provides in part that all public records shall be open for inspection by any person except as otherwise provided. KRS 61.872(2) states in part that any person shall have the right to inspect public records during the regular office hours of the public agency. KRS 61.874(1) provides in part that after inspecting the public records the requesting party has the right to make copies of those records. The public agency may prescribe a reasonable fee for making the copies which shall not exceed the actual cost thereof not including the cost of staff required.
In OAG 80-641, copy enclosed, at pages two and three, we said in part that a public agency's response that the requesting party would be allowed to review records one day a month and two months of records at a time placed an unreasonable and illegal restriction upon the right of the requesting party to inspect public records. We believe that your attempt to restrict the requesting party's inspection of public records to one-half hour a week is, likewise, an unreasonable and illegal restriction on the requesting party's right to inspect public records. The requesting party is entitled to inspect the public records in question immediately and continuously until the inspection is completed to his satisfaction.
Since your letter of July 31, 1987, to the requesting party constituted in part a denial of his request to inspect public documents a copy of that letter should have been sent to the Attorney General pursuant to KRS 61.880(2). See also OAG 86-20, copy enclosed, at page three.
In conclusion, it is the opinion of the Attorney General that the response of the public agency to the request to inspect documents that some of the requested documents do not exist was sufficient and proper as far as the Open Records Act is concerned. The public agency's attempt to restrict the requesting party's inspection of those records which do exist to one-half hour a week is an unreasonable and illegal restriction on the right to inspect public records and such records should be made available for inspection immediately.
As required by statute a copy of this opinion is being sent to the requesting party, David Daniel. Since this opinion has reached conclusions in opposition to some of the positions and arguments set forth by each of the respective parties, either or both of the parties may challenge the findings and conclusions expressed herein in the appropriate circuit court pursuant to KRS 61.880(5).