Request By:
Ms. Melissa Carroll
City Clerk
City of Olive Hill
P. O. Box 460
Olive Hill, Kentucky 41164
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Keith Wilburn has appealed to the Attorney General pursuant to KRS 61.880 your response to his June 3, 1991, request to inspect certain records of the city located in the clerk's office. These records are identified as printouts of the City of Olive Hill employee payroll.
You verbally denied Mr. Wilburn's request, indicating that the Mayor of Olive Hill, Jim Short, had instructed you to distribute preprinted request forms to persons seeking access to records. These forms are to be returned to you and a response issued based on the information they contain. The requester must state, among other things, the reason for his request.
It is Mr. Wilburn's position that the portion of the preprinted request form requiring a statement of purpose violates both the spirit and the letter of the Open Records Law. In support of his argument, he cites OAG 82-234. In addition, he asserts that as a city councilman, he is entitled to inspect any public records retained by the official custodian of the city.
Mr. Wilburn asks that we review your actions to determine if they were consistent with the Open Records Law. For the reasons outlined below, we conclude that you acted improperly in requiring Mr. Wilburn, and presumably other requesters, to state the reason for his request.
OPINION OF THE ATTORNEY GENERAL
The City of Olive Hill cannot require a person seeking access to public records to indicate his or her reason for making a request. This Office has consistently held:
The purpose for which a person seeks access to a public record is not relevant to the Open Records Law. A public agency has no right to inquire as to the purpose for the inspection and copying of the record. Any inspection request form which requires the statement of the purpose of inspection is contrary to the law.
OAG 82-234. See also OAG 78-231; OAG 79-275; OAG 81-345; OAG 82-394; OAG 84-93; OAG 85-120; OAG 86-36; OAG 89-79; OAG 89-86.
KRS 61.872(2) provides:
Any person shall have the right to inspect public records during the regular office hours of the public agency. The official custodian may require written application describing the records to be inspected.
An agency cannot require a requesting party to state his purpose in making a request, nor can it, as a matter of policy, allow inspection and copying of records for certain purposes and deny it for other purposes. "It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement." OAG 82-394, p.3.
As a corollary of this proposition, the Office of the Attorney General has consistently held that the identity of the person making the request is irrelevant. "[U]nder the Open Records Law all persons have the same standing to inspect public records . . . ." OAG 80-641; See also, OAG 79-546; OAG 79-582; OAG 82-394; OAG 89-86. Thus, this Office has held that a prison inmate has as great a right as, and a member of the press, no greater right than, any other person to inspect public records. OAG 79-546; OAG 79-582. "If one person [in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect. " OAG 89-86.
Where, however, a public official, here a councilman, representing a public agency, here, a city council, makes a request for public records in the performance of a legitimate public function, KRS 61.878(5) mandates disclosure regardless of whether an exemption might be invoked. That statute provides:
[The exceptions to the Open Records Law] shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
This provision has been interpreted to mean that even if records are exempt from the public generally, they should be made available to public agencies, and by extension, public officials, for legitimate governmental purposes. OAG 77-666; OAG 79-475; OAG 79-608; OAG 85-94; OAG 91-22; OAG 91-86. In addition, local ordinances may mandate disclosure of such records to public officials. Accordingly, we find that the city must allow Mr. Wilburn access to the records he requested, any applicable exemption notwithstanding.
We therefore conclude that the City of Olive Hill acted improperly in requiring Mr. Wilburn to state the reason for his request and in denying Mr. Wilburn access to the requested records.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Keith Wilburn. The City of Olive Hill may challenge it by initiating proceedings in the appropriate circuit court pursuant to KRS 61.880(5).