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 the Office of the Attorney General's Consumer Protection Division violated the Open Records Act in responding to a series of requests submitted by Roger Brown. For the reasons that follow, we conclude that the Division's responses were procedurally deficient but substantively correct. In addition, the loss or destruction of certain records identified in Mr. Brown's request raises records management issues which may warrant additional inquiry by the Department for Libraries and Archives, and this matter has been referred to the Department, pursuant to KRS 61.8715, for appropriate action.
The sequence of events giving rise to this appeal is summarized below.
. August 12, 1997 - Mr. Brown submits an open records request to the Office of the Attorney General for "any and all documents in the Attorney General's Office including the Consumer Protection Division that has [sic] the name Roger Brown, Brown, R. Brown or any other direct or indirect reference to same." Mr. Brown's request is sent via certified mail.
. August 21, 1997 - Consumer Protection Division Director Todd Leatherman denies Mr. Brown's request, advising him that "this office has an open investigation pending, therefore no records are available pursuant to KRS 61.878."
. December 17, 1998 - Mr. Brown resubmits his request for "any and all documents in the Attorney General's Office, including the Consumer Protection Division, that has [sic] the name Roger Brown, Brown, R. Brown or any other direct or indirect reference to same." Mr. Brown again sends his request via certified mail.
. December 28, 1998 - Mr. Leatherman notifies Mr. Brown that the Division has searched its database and uncovered approximately ninety files. He notes that the Division found only one file designated "Roger C. Brown" but that because "Brown" is a common name, and Mr. Brown failed to furnish a middle initial, he is unsure whether that file pertains to him. Mr. Leatherman requests clarification, explaining that "photocopying the documents in ninety files would pose a strain on our resources." Moreover, he advises, the ten cents per page copying charge which the Division must assess Mr. Brown for reproducing ninety separate files "would present a high cost to [him]." Mr. Leatherman expresses the Consumer Protection Division's willingness to assist Mr. Brown "once [the Division has] a more defined search request."
. February 2, 1999 - Mr. Brown submits his request, a third time, for any and all documents in the Office of the Attorney General, including the Consumer Protection Division, "that are in [his] file or that has [sic] the name Roger C. Brown, or refers to same by using Roger Brown, R. Brown, Brown or any other direct or indirect reference to same or any document that pertains to [him]." Mr. Brown identifies himself as:
On this occasion, Mr. Brown also requests "the names of each Attorney General and all persons within the Attorney General's office, including the Consumer Protection Division that were employed since 1986 . . . [including] the times of their employment and their respective titles and work functions." Finally, Mr. Brown extends the scope of his request to include "details of that investigation that [Mr. Leatherman] referred to as being "an open investigation pending . . . [specifying] when it began, when it was concluded, who were the investigators, what and whom did they investigate, what was the conclusion and all other relevant details." He again sends his request via certified mailing, subsequently producing the signed return receipt as proof.
. Mr. Brown receives no response to this request. Shortly thereafter, Mr. Brown initiates this appeal.
Having received notification of Mr. Brown's June 17 appeal, the Consumer Protection Division, through Acting Director James C. Shackelford, issues the following response:
The response [to Mr. Brown's first request] denied the request, stating that there was an open investigation pending. Reference was made to KRS 61.878, although the exact subsection was not cited. Prior to the request, the Division had begun a review under the Consumer Protection Act, KRS 367.170 et seq. , of Mr. Brown's activities in sending dunning letters to consumer accounts he had purchased from a now-defunct timeshare resort. The Attorney General is the chief law enforcement officer in the Commonwealth. Following Mr. Brown's request, three items were identified as potentially meeting Mr. Brown's request criteria. The first was a copy of a dunning letter sent by Mr. Brown to a consumer and then forwarded to the Division. The second was a letter by Assistant Attorney General James C. Shackelford to Mr. Brown explaining why the Division did not view him as being a holder-in-due-course of the consumer accounts he purchased. Mr. Brown already had both of these items.
The third item was a set of notes of an interview conducted by Assistant Attorney General Shackelford and Mr. Brown. Those notes contained the mental impressions, conclusions, and evaluations by Assistant Attorney General Shackelford. As such, release of the information at that time would have harmed the Division since the Division was reviewing the matter for prospective litigation. Accordingly, the Division asserts that the request was properly denied pursuant to KRS 61.878(1)(h).
. . .
The second Open Records Request was assigned to a different Assistant Attorney General for research and review. The Division maintains records by case name and by consumer name. A search showed approximately ninety files (90) with the name "Roger Brown, Brown, or R. Brown" constituting many different individuals. The response to Mr. Brown asked for additional clarification on the records he was seeking and also noted that copying the documents in 90 different files would pose a strain on the Division's resources. KRS 61.872(3)(b) requires mailing of public records only after the requester "precisely" describes the public records readily available within the agency. Mr. Brown's request did not precisely describe the records and he was so notified. Under KRS 61.872(6), an agency can deny a request if it places an unreasonable burden in producing public records. Reviewing, disassembling, and copying 90 different files would place an unreasonable burden on the Division.
Mr. Brown also appeals a request he says was sent on February 2, 1999. The Division has conducted a reasonable search of its records and cannot find any such request.
Mr. Shackelford indicates that the Division will address Mr. Brown's third request upon receipt.
On June 29, 1999, the Division receives a copy of the third request, and on July 6 issues the following response to Mr. Brown:
You first essentially request all documents which are in your file or that has the name of Roger Brown or refer directly or indirectly to Roger Brown. Limiting the document request to the identifying information provided in your letter, we hereby produce the following documents which we can readily identify:
We cannot further comply with your request for documents because it asks for all documents which contain any direct or indirect reference to you. There may be references to you which we do not index or track in any identifiable way. Because of multiple owners, multiple names used by resorts, and cross ownership of various timeshare and campground resorts, there is no way to review all files to determine if there is a direct or indirect reference to you. At this time, we no longer consider an investigation into your activities as being open and have responded accordingly.
You next request the names of all Assistant Attorneys General employed since 1986, their employment dates, and their respective titles and work functions. The Consumer Protection Division does not maintain those records. They are maintained by the Administrative Services Division of the Attorney General's Office. The custodian of those records is Malea Vincent, Office of the Attorney General, State Capitol, Frankfort, KY 40601.
Mr. Leatherman denies Mr. Brown's request for "details of the investigation" advising him that the "request does not ask for documents and, therefore, does not come under the Open Records Act.
In an addendum to the Consumer Protection Division's July 12 response, Corey Bellamy, Public Information Officer for the Office of the Attorney General, amplifies on the Division's position relative to the names, dates of employment, and assigned duties of employees of the office from 1986 to the present, as well as the names of former Attorneys General. Having reviewed the matter with the Administrative Services Division of the office, Mr. Bellamy notifies Mr. Brown:
We do not have a single record that contains all of the above referenced "employee information." That information covers almost fourteen years and probably covers over one thousand employees during that time period. That information is contained in several thousand records in several thousand files. Some of those files are located in this office and some are in the offices of the Kentucky Personnel Cabinet. Some of those records are paper records and some are electronic records. Therefore, I am writing to present you with three options that are available under the provisions of the Kentucky Open Records Act for the above referenced "employee information."
Option One: You may personally inspect those records in our office and in the offices of the Kentucky Personnel Cabinet. Under the Kentucky Open Records Act, first you would have to describe the specific records you request to inspect. Then we would have to locate those specific records. Next we would have to redact certain "personal information" from those records before you may inspect them. Since several thousand records are involved, this option may require a substantial amount of our time to prepare those records and a substantial amount of your time to inspect them.
Option Two: You may request a copy of those records. Again, under the Kentucky Open Records Act, first you would have to describe the specific records you request us to copy. Then we would have to locate those specific records. Next we would have to redact certain "personal information" from those records before you may have a copy of them. Since several thousand records are involved, this option may require a substantial amount of our time to prepare and copy those records. Also, you would have to prepay for the copies.
Option Three: You may request that we prepare a new record containing the "employee information" you have requested. Under the Kentucky Open Records Act, we are not required to prepare a new record. If we would voluntarily agree to prepare a new record, you would have to pre-pay for the cost of preparing that new record. Since several thousand records are involved, the costs would be substantial.
Mr. Bellamy requests that Mr. Brown indicate which of these three options he wishes to exercise. In closing, he confirms that "all of the records [that Mr. Leatherman and his Division] could locate containing a reference to [Mr. Brown's] name have been released to him, and that the Division's investigation is now closed."
In his June 17 letter of appeal, Mr. Brown requests review of the Consumer Protection Division's handling of his applications for access to public records, expressing his hope that the Attorney General "will act honestly and fairly" in discharging his KRS 61.880(2) quasi-adjudicative duty, notwithstanding the fact that his "agency is in effect the same as the Consumer Protection Division." He requests imposition of monetary penalties in the amount of $ 25.00 per day for each day he was denied access (an amount in excess of $ 16,000 as of the date of his appeal). In supplemental correspondence, he questions the legality of the Division's actions in conducting its investigation, and in its handling of his records requests. Mr. Brown attempts to bootstrap an appeal of a February, 1991, denial of an earlier request for "the entire case on Settlers Trace and/or Mid State Development," said request having been denied on the basis of KRS 61.878(1)(f) (now KRS 61.878(1)(h)), in order to augment the penalties he urges the Attorney General to impose upon the Consumer Protection Division (an amount in excess of $ 100,000 as of the date of his supplemental correspondence) .
Attorney General's review of Consumer Protection Division's actions
Before proceeding to the ultimate issue in this appeal, we briefly address Mr. Brown's concerns about this office's ability to fairly and objectively adjudicate disputes involving the denial of a request by a division of this office. KRS 61.880(2) assigns to the Attorney General the role of dispute mediator in an open records appeal. In construing this provision, the Attorney General has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
Also, if this matter is appealed to the appropriate circuit court-which could have been done without requesting the opinion-that court will make a de novo review of the evidence. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639. Because there is no provision for independent review under circumstances such as those presented here, the Attorney General must proceed with a review of the appeal "without favoritism or bias." Id.
Procedural issues
We first address certain procedural issues with the Consumer Protection Division's responses to Mr. Brown's requests, postponing discussion of the flaws in the manner in which Mr. Brown framed his requests until we reach the merits of his appeal. KRS 61.880(1) establishes procedural guidelines for agency response to open records requests. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). In its August 21 response to Mr. Brown's original request, the Division failed to cite the specific exception authorizing the withholding of the records. Although the Division roughly paraphrased the language of KRS 61.878(1)(h), its denial contains no reference to that provision. To this extent, the Consumer Protection Division's response was procedurally deficient.
In the same response, the Division failed to acknowledge the existence of two documents which, in subsequent correspondence, it acknowledged it possessed. These records were characterized, in Mr. Shackelford's June 17, 1999 supplemental response, as "a dunning letter sent by Mr. Brown to a consumer and then forwarded to the Division," and "a letter by Assistant Attorney General James C. Shackelford to Mr. Brown explaining why the Division did not view him as being a holder-in-due-course of the consumer accounts he purchased." The Division withheld these records from Mr. Brown, without expressly stating that it was doing so, because he "already had both of these items." This rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request. Again, the response is deficient to the extent that it failed to include a statement of the specific exception authorizing the withholding of the records, and was therefore inconsistent with KRS 61.880(1).
Finally, we find that the Division erred, in its July 6, 1999, response to Mr. Brown's third request when it directed him to resubmit his request for the names of employees of the Office of the Attorney General, their dates of employment, titles, and assigned duties from 1986 to the present, to the Attorney General's Administrative Services Division. The term "public record" is defined as "all books, papers, maps, photographs, cards, tapes, discs, diskette recordings, software, or other documentation, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Assuming that Mr. Leatherman was acting under authority of the official custodian of the Office of the Attorney General in issuing this response, he could not selectively respond to only those requests for records over which he had personal custody and control. The disputed personnel records are within the custody and control of the Office of the Attorney General on whose behalf he responded. The better course, in our view, was to confer with Administrative Services in formulating the proper response to Mr. Brown's request for personnel records, rather than requiring him to resubmit his request to a different division of the same office. This procedural irregularity was mitigated by Mr. Bellamy in his addendum to the July 6 response.
Substantive issues
Request for copies of "any and all documents in the Attorney General's Office including the Consumer Protection Division, that has [sic] the name Roger Brown, Brown, R. Brown or any other direct or indirect reference to same."
In denying Mr. Brown's August 12, 1997, request to inspect "any and all" records in the custody of the Attorney General's Office which contain his name or surname, the Consumer Protection Division originally advanced the argument that all responsive records were excluded from public inspection while its investigation into his business practices was ongoing. Although, as noted, the Division failed to cite KRS 61.878(1)(h) as the statutory basis for its denial, it is apparent that this was the exception upon which it relied. It is equally clear that that exception supports nondisclosure of records of a law enforcement agency or an agency involved in administrative adjudication "that were complied in the process of detecting and investigating statutory or regulatory violations if . . . the disclosure of the information would harm the agency" by premature release of information. In its June 28 supplemental response, the Division explained that it had begun an investigation into Mr. Brown's activities under authority of KRS 367.170 et seq. , the Consumer Protection Act. In addition to the two document discussed above (under "Procedural Issues"), the Division possessed "notes of an interview conducted by Assistant Attorney General Shackelford . . . [which] contained [his] mental impressions, conclusions and evaluations." Disclosure of the notes, while the investigation was proceeding, "would have harmed the Division since the Division was reviewing the matter for prospective litigation." Thus, although the Division's original response was procedurally deficient, its denial was substantively correct.
Mr. Brown's second request, dated December 17, 1998, was couched in identical terms. The Division's denial, however, was postulated not on the existence of an ongoing investigation, but on the nonspecificity of his request. Mr. Leatherman asserted that a review of the Division's database disclosed at least ninety files which might be responsive to his request, and that reproduction of these records would strain the Division's resources, and obligate Mr. Brown to pay substantial copying charges. In its June 28 supplemental response, the Division elaborated:
KRS 61.872(3)(b) requires mailing of public records only after the requester "precisely" describes the public records readily available within the agency. Mr. Brown's request did not precisely describe the records and he was so notified. Under KRS 61.872(6), an agency can deny a request if it places an unreasonable burden in producing public records. Reviewing, disassembling, and copying 90 different files would place an unreasonable burden on the Division.
We find that the Division's position was legally sound.
In 99-ORD-14, this office expressly held:
[A] request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and . . . generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
94-ORD-14, p. 7. This decision was premised on the notion that:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.[871]. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
92-ORD-1261, p. 3. Here, as in 99-ORD-14, the requested records were not identified with "reasonable particularity," nor were they of an identified, limited class. Here, as in 99-ORD-14, "In order to comply with such a request, the [Division] would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by it," or any other Division of the Office of the Attorney General, since it came into existence, to determine if the name "Roger Brown" or "R. Brown," or the term "Brown" appeared in or on the record, or if the record "directly or indirectly" related to him. Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, public employees "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. As framed, Mr. Brown's request imposed an unreasonable burden on the Consumer Protection Division.
Having clarified who he was, and what records he wished to access, Mr. Brown resubmitted a third request for any and all documents in the custody of the Office of the Attorney General, including the Consumer Protection Division, "in [his] file" or containing the name "Roger C. Brown." The Division responded by releasing to him certain documents catalogued in its July 6 response, and advising him of the loss or destruction of others. 1 We have since received confirmation that all existing records containing reference to "Roger C. Brown" have been sent to him. (July 12, 1999, addendum to Attorney General's July 6 response to February 2, 1999, request.) Obviously, the office cannot produce records which it does not have, or which, by virtue of their loss or destruction, no longer exist. See, for example, OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-156. We have also recognized that, in general, it is not our duty to investigate in order to locate documents which do not exist or which have been lost or destroyed. OAG 86-35. Although its response was untimely, the Division of Consumer Protection discharged its duties under the law when it afforded Mr. Brown access to all responsive records in its possession by sending him copies of those records through the mail. The Open Records Act does not require more.
Request for "the names of each Attorney General and all person within the Attorney General's office, including the Consumer Protection Division[,] that were employed since 1986 . . . including the times of their employment and their respective titles and work functions."
Mr. Brown's request for the names of employees of the office of the Attorney General since 1986, their titles, dates of employment, and assigned duties was technically a request for information as opposed to a request for specifically described records. The Attorney General has long recognized that "the purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. OAG 76-375. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding the meaning or import of information shown upon records produced.
See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19; 98-ORD-4. Thus, the public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to nonexempt records, and not to require the compilation of information.
In his July 12, 1999, addendum to the Consumer Protection Division's response, Mr. Bellamy explained that no single record in the custody of the Attorney General's Office contains the information Mr. Brown requested. He indicated that the information was amassed in several thousand documents stored in an equal number of files. Mr. Bellamy did not deny Mr. Brown's request on this basis, but instead offered him three options: 1) on-site inspection of the thousands of records from which he could extract the information himself; 2) receipt of copies by mail upon prepayment of reasonable copying charges; or 3) creation of a new record containing the employee information he requested with the cost of creation to be born by Mr. Brown. Each of these proposals is supported by the Open Records Act, and in particular KRS 61.872(3)(a) and (b), and KRS 61.874(3). 2 We find no error in this response. Mr. Brown may notify the Office of the Attorney General which of these options he wishes to exercise.
Request for "details on the investigation referred to in Mr. Leatherman's August 21, 1997 letter . . . specifying when it began, when it concluded, who were the investigators, what and whom did they investigate, what was the conclusion, and all other relevant details."
Again, Mr. Brown's request for "details of the investigation" constituted a request for information, and the Consumer Protection Division properly characterized it as such. On this basis, the Division asserted that the request was beyond the scope of the Open Records Act, and declined to honor it. Nevertheless, the Division advised Mr. Brown that the records already disclosed to him might yield the information he seeks, and suggested that he review them in order to extract that information.
Based on the authorities cited above, we conclude that the Division's response was consistent with the Open Records Act. We affirm its denial of this portion of Mr. Brown's response.
Records management issues
The Division of Consumer Protection acknowledges the loss or destruction of numerous documents, including Mr. Brown's third open records request, 3 a complaint filed in 1997 by James and Mary McKinney, the dunning letter sent by Mr. Brown to consumers, a letter sent to Mr. Brown by the Division, and notes of the Division's interview with Mr. Brown. With respect to these records, we find that although the Division cannot be said to have violated the Open Records Act by failing to produce records which cannot be located or have been destroyed, its inability to locate these records raises records management issues which can only be resolved by the Department for Libraries and Archives.
While the Attorney General has, as noted above, traditionally taken the position that a public agency does not violate the Act by denying a request for nonexistent records, we have applied a higher standard of review to denials based on this argument since 1994. In 1994, the Open Records Law was amended to include the following language:
The General Assembly finds an essential relationship between the intent of . . . [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.
KRS 61.8715.
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency frustrates full access to public records. Pursuant to KRS 61.8715, we have referred these issues to the Department for Libraries and Archives for a determination whether additional inquiries as to records management are warranted.
Issues Beyond the Scope of the Open Records Act
Having analyzed the records access issues which Mr. Brown raises, we are left with two remaining issues which exceed the scope of the Attorney General's authority under KRS 61.880(2). Mr. Brown requests that monetary penalties be imposed on the Consumer Protection Division for failure to produce the records requested. In addition, he poses a series of questions relating to the validity of the Division's action and the proper scope of its authority to conduct an investigation into his business practices. The Attorney General is not empowered to grant him monetary relief, or resolve non-open records related issues in an appeal initiated under KRS 61.880(1).
In 96-ORD-120, the Attorney General analyzed his limited role in adjudicating open records disputes. At page 3 of that decision, we opined:
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884.
See also, 96-ORD-142; 96-ORD-171. The Attorney General cannot determine if an investigation conducted by the Consumer Protection Division was proper, or if an individual's civil rights were violated, in a decision rendered under KRS 61.880(2)(a).
Nor can we impose monetary penalties for violations of the Open Records Act. 98-ORD-21; 95-ORD-88. KRS 61.882(5):
Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($ 25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation.
The language of this statute is abundantly clear. Only the courts may impose penalties for denial of inspection of public records. See also, OAG 79-380; OAG 80-367; OAG 81-264; OAG 82-342; OAG 90-58; 93-ORD-135. For this reason, the Attorney General's Office has consistently "refrained from opining on whether records were willfully withheld pursuant to KRS 61.882(5)." OAG 90-58, p. 6.
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.
Footnotes
Footnotes
1 The records management issues which the Division's inability to locate these records raises is reserved for later discussion.
2 The cited statutes provide:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(3) The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
3 There can be no doubt that the request was received by the Office of the Attorney General. To facilitate our review of this issue, Mr. Brown furnished us with a copy of the signed return receipt, date stamped February 8, 1999, by the office.