Request By:
Ms. Denise Harper-Angel
Chief Deputy Property Valuation Administrator
504 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Janet Phelps has, apparently, appealed to the Attorney General, pursuant to KRS 61.880, the handling of her requests for records by the office of the Jefferson County Property Valuation Administrator.
This apparent appeal was reassigned to the undersigned Assistant Attorney General on August 16, 1990. The undersigned's knowledge of the facts and circumstances surrounding this matter is rather limited as the entire "record" consists of five one page letters. Furthermore, Mr. Tim Firkins, the Property Valuation Administrator when this proceeding began, resigned his office and was recently replaced by an acting Property Valuation Administrator.
In a letter to you dated December 8, 1989, Ms. Phelps states that she is writing to you regarding her telephone conversation with you on November 29, 1989. Her firm, Blue Grass Mailing Services, desires to purchase all property valuation records for the Jefferson County area. This information will not be used for mailing purposes but in research for use with her firm's residential mailing lists. Her firm had been purchasing this information from Real Estate Data, Inc. but now wants to obtain it from the Property Valuation Administrator.
In a letter to a member of the Attorney General's staff (that person is no longer with the Attorney General's Office), dated January 22, 1990, which never mentioned the Open Records Act or an appeal under that Act, Ms. Phelps sought the assistance of this office. She said the information she is seeking would be used in her firm's research department to determine which geographical areas in Jefferson County have homes of certain values. She also said that the Property Valuation Administrator was supplying such information to Real Estate Data, Inc. As far as the undersigned can determine that letter was not treated as an appeal under the Open Records Act.
In a letter to Tim Firkins, dated March 12, 1990, Ms. Phelps requested "certain property value information." This would be used for research purposes only and would not be used for a mailing list. She further stated that she would prefer to purchase this information on a 9-track tape or diskette.
Ms. Phelps' letter of March 20, 1990, addressed to a member of the Attorney General's staff who is no longer with the Department of Law, complained in part of the failure of the Property Valuation Administrator's Office to respond to her requests. She asked this office for a determination as to whether her firm can obtain the information in question. The Attorney General's Office assigned that letter for a response and apparently considered it as an appeal under the Open Records Act.
The last letter of record is a letter to the Attorney General from Bill Nichols, Jr., of Blue Grass Mailing Services, dated July 6, 1990, complaining of the handling of the matter in question.
On September 4, 1990, the undersigned contacted you by telephone and you confirmed that the Property Valuation Administrator's Office has never responded in writing to the requests of Blue Grass Mailing Services for information and documents. You did take issue with Ms. Phelps' assertions as to the purposes for which the information and documents sought would be used. [KRS 133.047(2) restricts the use of information obtained from inspecting property tax rolls.] Your office apparently did not consider Ms. Phelps' requests to be requests for documents under the Open Records Act [KRS 61.870 to KRS 61.884]. Your office apparently considered the requests to be requests for data processing services to provide a mass of data to fit a specific program designed for a particular person or company. Finally, you mentioned the lawsuit filed by your office against the city of Hurstbourne involving KRS 132.285 and that city's alleged failure to pay the statutorily required fee for assessment information which the city may have been obtaining from Real Estate Data, Inc.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) sets forth the duties of a public agency relative to "any request for records made under KRS 61.870 to 61.884." That statutory subsection requires the public agency to respond in writing within three work days after the receipt of the request to inspect records.
While the requesting party's letters never referred to the Open Records Act or made requests to inspect records under that law, the Open Records Act has been in effect since 1976 and if there is any doubt as to whether a request is made under those provisions, the public agency should assume that the Act has been invoked and respond accordingly. Your office may have legitimate reasons for denying these particular requests but, in any event, a written response, timely sent, is required. If your response does amount to a denial KRS 61.880(1) requires that you 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. KRS 61.880(2) requires that the public agency immediately send a copy of its letter of denial to the Attorney General. In connection with the public agency's duties and responsibilities when it receives a request under the Open Records Act, see OAG 90-19, OAG 89-65 and OAG 88-54, copies of which are enclosed.
If a person wants to inspect records he must make his request initially to the public agency which has custody of the records and not to this office. After the public agency has received a request it must follow the procedures of the Open Records Act, with special attention given to KRS 61.880, rather than, at that point, turning to this office for advice and guidance. No matter how the public agency views the merits of the request it must respond in writing and in a timely and proper manner.
In conclusion, it is the opinion of the Attorney General that Janet Phelps' requests to the public agency should have been construed as requests under the Open Records Act and that the public agency violated the Open Records Act when it failed to respond in writing within the statutory time frame and in the manner required by KRS 61.880. The public agency should immediately advise the requesting party in writing, pursuant to KRS 61.880, of its intentions relative to Janet Phelps' requests.
As required by statute, a copy of this opinion is being mailed to the requesting party, Janet Phelps. If either or both of the parties to this appeal disagree with the findings and conclusions expressed herein, further proceedings may be initiated in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.