Request By:
Hon. Paul Herron, Jr.
County Judge Executive
Henderson County Kentucky
Henderson County Courthouse
5 North Main Street
Henderson, Kentucky 42420
Opinion
Opinion By:
By letter of January 10, 1990, Kenneth D. Moody has appealed what he indicates is your failure to respond to his December 21, 1989 request for certain maps apparently related to permitting of surface mining under Henderson County Zoning Regulations.
FINDINGS IN BRIEF
Where a requester asked to be furnished copies of certain maps he had not inspected, the requirement of a written response pursuant to Open Records provisions was not applicable, as such requirement comes into play only in relation to denial of a request to inspect public records. Accordingly, an agency's failure to respond to a request for copies of records that had not been inspected, was not other than consistent with Open Records provisions. The right to copies of public records is ancillary to inspection of such records.
FACTUAL BACKGROUND
By letter of December 21, 1989, Kenneth D. Moody indicated he wanted a complete copy of certain maps.
Mr. Moody described the maps he wanted as:
1. A complete Keller P-26 map numbered with sections showing the total area rezoned for surface mining and the number of acres and also showing where permit 851-8000 is and the number of acres for the permit.
2. I also want the same information for Keller map 0-26 for permits 851-0001 and and 851-0002. Keller map P-26 for permit number 851-0003. Keller maps 0-25 and 0-26 for permit number 851-0004
3. All Keller maps are to be complete not in parts.
4. Underground coal mine tunnels map for old underground works - Onionville Mine
Mr. Moody indicates he has received no response from you regarding his request.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
Kentucky's Open Records provisions establish a requirement of a written response where there is a denial of a request to inspect public records. There is no statutory requirement under Open Records provisions that a written or other response be made to a request for copies of records that have not been inspected. The right to copies of public records is ancillary to inspection. KRS 61.874(1). OAG 82-629. There is no indication in Mr. Moody's request to you that he inspected the maps in question. Accordingly there was no requirement that you respond under Open Records provisions. Thus, we cannot find that you acted other than consistent with Open Records provisions in connection with Mr. Moody's request.
I note that in background checking incident to preparing this opinion, it appeared that Henderson County does not have "Keller Maps" to be furnished for inspection. Mr. Moody, as I understand it, was furnished such public information as does exist regarding the permits in question. Further, I was advised that the location codes given on copies of Henderson County Surface Mining Permits, furnished with Mr. Moody's appeal to this office, give only general location - as within a mile or so - of a given surface mining permit. Detailed location information can be obtained from the specific permit file maintained by the County regarding each permit. Tom Allinder, who I understand does surface mining permit inspections for Henderson County, indicated that Mr. Moody was furnished information regarding where Keller maps could be obtained [Keller Map Company, 1701 Triplett, Owensboro, Ky. 42301] at a nominal charge of perhaps $ 3.00 per map.
Again, Mr. Moody's request was a request to be furnished copies of records that apparently had not been inspected. Accordingly, there was no requirement that you respond in writing, as would have been called for had the request been one to inspect records, and inspection was denied. We cannot, under such circumstance, find that you acted other than consistent with Open Records provisions.
Mr. Kenneth D. Moody may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. Moody.