Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Breathitt County Clerk Tony Watts violated the Open Records Act in responding to Granville V. Turner III's February 19 and February 27, 1999, requests for copies of "any and all coal leases . . . that have the following name variations as a lessor: G. V. "Doc" Turner, or G. V. Turner, or Granville V. Turner, or Granville V. Turner III, or G. V. Turner III," to be "billed [to] the G. V. 'Doc' Turner heirs. " For the reasons that follow, we find that although Mr. Watts failed to cite the appropriate provision of the Open Records Act authorizing his denial of Mr. Turner's request, he properly refused to honor that request.
In a response dated February 23, 1999, Mr. Watts advised Mr. Turner that his request "involves a lot of research" which his limited staff could not conduct. On March 2, Mr. Watts responded to Mr. Turner's second request. He explained that the records in his office "are available to the public but that does not obligate us to do research." Mr. Watts reiterated that his office did "not have the time or the staff to do [his] research." This position finds support in the Open Records Act. We therefore affirm the Breathitt County Clerk's denials of Mr. Turner's requests.
In a series of open records decisions, the Attorney General has stated:
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
The Open Records Act thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency.
97-ORD-46, p. 2, 3; see also 95-ORD-52; 96-ORD-186. Mr. Turner is an inmate confined at Blackburn Correctional Complex in Fayette County. The requested records are located in Breathitt County. Mr. Turner therefore satisfies the first requirement of KRS 61.872(3)(b). Before he can demand that the Breathitt County Clerk send him copies of public records, however, he must "precisely describe[]" those records, and they must be "readily available within the public agency. "
At pages 3-5 of 97-ORD-46, this office observed:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail. In construing KRS 61.872(2), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
. . .
The third requirement (that the records be "readily available within the public agency" ) permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
The records identified in Mr. Turner's request were not described with "reasonable particularity," much less in definite, specific, and unequivocal terms. 1 Thus, Mr. Turner's request did not satisfy the second requirement of KRS 61.872(3)(b), namely that he precisely describe the records which he wished to access by receipt of copies through the mail. This being the case, the records identified in his request are not readily available in the county clerk's office within the meaning of the third requirement of KRS 61.872(3)(b). Finally, and assuming for the sake of argument that he had satisfied the other requirements of KRS 61.872(3)(b), Mr. Turner was not entitled to receive copies of the records through the mail until he prepaid all copying fees and the cost of mailing. His directions that Mr. Watts "bill the G.V. 'Doc' Turner heirs" did not satisfy this final requirement.
As an inmate confined in a correctional facility, Mr. Turner cannot exercise the right of on-site inspection. Although "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof, . . . [he] must accept the necessary consequences of his confinement. . . ." 95-ORD-105, p. 5. Records of the county clerk are available for public inspection during regular business hours for persons who are able to exercise the right of on-site inspection, but Mr. Turner's options are limited. He is able to obtain access to the records by receipt of copies through the mail upon prepayment of all copying and postage charges, and after precisely describing the records which are readily available within the agency . Because he failed to satisfy these requirements, Mr. Watts properly denied his request.
We note, in closing, that Mr. Watt's responses, although issued in a timely fashion, were procedurally deficient. In denying Mr. Turner's requests, Mr. Watts was obligated to cite the provision of the Open Records Act upon which he relied, in this case KRS 61.872(3)(b), and briefly explain how it applied to the records withheld. KRS 61.880(1); Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996) (holding that "[KRS 61.880(1)] requires the custodian of records to provide particular and detailed information in response to a request for documents"). We urge the Breathitt County Clerk to bear these observations in mind in drafting future open records responses.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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