Request By:
Ann Z. Stewart, Esq.
General Counsel
Secretary of State and
State Board of Elections
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Dan Hauner has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to obtain copies of particular records in the possession of the State Board of Elections.
In a letter to Ms. Charlotte G. Mullins, Executive Director of the State Board of Elections, dated February 4, 1988, Mr. Hauner made what he called "a formal request under KRS 61.872 to inspect the records of the voting roster for the 49th Legislative District. We would like copies of such lists as authorized under KRS 61.874." Ms. Mullins, in a letter to Mr. Hauner, dated February 2, 1988, had denied his requests for mailing labels for voters in various Kentucky Legislative Districts and cited KRS 117.025(3)(i) in support of her decision.
In your letter to Mr. Hauner, dated February 9, 1988, you advised him that the State Board of Elections was denying his request. In support of the Board's decision you cited KRS 61.878(1)(j) and KRS 117.025(3)(i). You said that the lists sought by Mr. Hauner could only be obtained by duly qualified candidates, political party committees or officials or any committee that advocates or opposes an amendment or public question. The statute prohibits the sale of such lists to persons who intend to use them for commercial purposes.
You also referred to the minutes of the January 29, 1988, meeting of the State Board of Elections which provide in part as follows:
After much consideration and discussion the board agreed that Mr. Hauner's request did not meet the criteria of KRS 117.025(3)(i), and the use of the mailing labels could be seen as being used for "commercial purpose" which is prohibited. A concern was also expressed that the language permitting use by "a committee that advocates or opposes a public question," refers to a public question that is placed on a ballot for the voter's consideration. The Board instructed Miss Mullins to inform Mr. Hauner of their decision.
In addition, you made mention of the contents of the letter Mr. Hauner proposed to send if he obtained the lists of registered voters in question. The Board concluded that the request for the lists, to send letters to voters urging them to support a piece of proposed legislation advocated by Kentucky Denturists, was in the furtherance of a "commercial purpose. " Both you and Mr. Hauner have provided this office with a copy of the letter in question.
In his letter of appeal to this office, received February 17, 1988, Mr. Hauner maintains that the letter to be mailed out was for informational and educational purposes rather than commercial purposes.
OPINION OF THE ATTORNEY GENERAL
Among the public records which shall be excluded from public inspection in the absence of a court order authorizing inspection are those records described in KRS 61.878(1)(j) as, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 117.025(3)(i) is an enactment of the General Assembly dealing with the acquisition and use of precinct lists and it provides as follows:
The state board shall:
* * *
Furnish at a reasonable price any and all precinct lists to duly qualified candidates, political party committees or officials thereof, or any committee that advocates or opposes an amendment or public question. The state board of education may also furnish the precinct lists to other persons at the board's discretion, at a reasonable cost, provided, however the board shall not furnish precinct lists to persons who intend to use such lists for commercial use.
Under the Open Records Act all public records of public agencies are subject to public inspection unless those records are excepted from inspection by a statutory enactment. KRS 117.025(3)(i) requires that the State Board of Elections make available to duly qualified candidates, political party committees and their officials and others the list of registered voters by precincts with a specific restriction concerning the use of those lists. Having reviewed the evidence made available to this office, including a copy of the letter to be sent if the materials in question were obtained, this office affirms the decision made by the State Board of Elections relative to the request submitted under the provisions of the Open Records Act.
It is, therefore, the opinion of the Attorney General that the decision of the State Board of Elections to deny Mr. Hauner's request for copies of precinct lists and mailing labels in connection with mailing the letter in question is supported by the provisions of KRS 61.878(1)(j) and KRS 117.025(3)(i).
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Dan Hauner, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.