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 Jefferson County Clerk subverted the intent of the Open Records Act, short of denial of inspection, in the disposition of Ralph Franklin, Jr.'s, December 11, 2002, request for "the name and zip code of the address commonly known as 14502 Pauly Gap, Louisville, Kentucky." 1 For the reasons that follow, we find that the clerk's disposition of Mr. Franklin's request was procedurally deficient, but was, in all other material respects, correct. Accordingly, we find that the clerk did not subvert the intent of the Act.
On a preprinted form, dated January 13, 2003, Jefferson County Clerk Bobbie Holsclaw notified Mr. Franklin that he would "need to contact an attorney in order to get this information." Characterizing the clerk's response as deficient on several grounds, Mr. Franklin initiated this appeal on January 20, 2003. Shortly thereafter, Assistant Jefferson County Attorney Walker C. Cunningham, Jr., responded on behalf of the County Clerk, attaching a copy of a letter that had that day been mailed to Mr. Franklin. Mr. Cunningham commented:
The County Clerk's Office . . . is set up to locate deeds and other documents by deed book and page number. Mr. Franklin did not provide that information, nor did he give us the correct spelling for the name of the property he was trying to locate. That meant that initially the PVA office, which we contacted, was unable to give us any information whatsoever. Eventually, the correct spelling of Pauley's Gap Road was determined and checked with the PVA database, which revealed no such address.
In closing, Mr. Cunningham advised that if Mr. Franklin can provide the deed book and page number or the name of the owner of the property, the County Clerk will assist him in securing a copy of the deed, but is otherwise unable to assist him. We find that although the Jefferson County Clerk's original response to Mr. Franklin's request did not conform to the requirements of KRS 61.880(1), the Clerk's supplemental response was consistent with the Open Records Act.
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party in writing of its decision relative to disclosure and if that decision is to honor the request, providing the requester with the records identified in his or her request on or before the three day period of limitation has expired. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of other services to the public.
Mr. Franklin's request, which was clearly identified as a "Request to Inspect Public Records Re KRS Ch. 61," was mailed to the County Clerk on or about December 11, 2002. Although it is unclear when the clerk received the request, the clerk's response was not issued until January 13, 2003, approximately one month after receipt. Mr. Franklin could infer from the clerk's belated response that his request was denied, but no open records related rationale was advanced in support of that denial. Instead, he was advised that he would "need to contact an attorney in order to get this information." This response did not satisfy the requirements of KRS 61.880(1). We urge the Jefferson County Clerk to review this provision to insure full compliance with the Open Records Act.
Following submission of his appeal, the Jefferson County Clerk notified Mr. Franklin that her office could not honor his request for "the name and zip code of the address commonly known as 14502 Pauly Gap, Louisville, Kentucky, . . . without a Deed book and Page number." Mr. Franklin was advised that the clerk would mail him a copy of the deed upon presentation of the requisite information. Having done so, the clerk fully discharged her duties under the Act.
To begin, Mr. Franklin's request was improperly framed as a request for information as opposed to a request for a copy 2 of a precisely described public record which is readily available within the public agency. KRS 61.872(3)(b). The Attorney General has long recognized that a public agency is not statutorily obligated to honor a request for information as opposed to a request for specifically described public records. For example, in 93-ORD-51 this office held that the Open Records Act:
was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-335, OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19; 99-ORD-71. Rather, the Law provides for inspection of reasonably identified records.
93-ORD-51, p. 3. Mirroring this view, in OAG 87-84 we observed:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3. These decisions were premised on the language of the statutes themselves, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) providing that "[a]ny person shall have the right to inspect public records ") (emphasis added).
These authorities notwithstanding, the Jefferson County Clerk elected to treat Mr. Franklin's request as a properly framed request for a public record, to wit, a deed, and agreed to mail him a copy upon submission of the deed book and page number for the subject property. 3 This response satisfied its legal obligations under the Act. KRS 61.872(3) establishes guidelines for records access. That statute provides:
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.
The Open Records Act 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 whose residence or principal place of business is outside 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. See, e.g., 95-ORD-52; 96-ORD-186.
At page 3 of 97-ORD-46, this office opined:
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.
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 County Clerk's Office is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided. When an open records requester provides this precise information, the clerk is required to mail him or her a copy of the deed upon prepayment of reasonable copying charges not to exceed ten cents per page 4 and postage charges. If the open records requester is unable to furnish this precise information, it is not incumbent on the clerk "to make extraordinary efforts to identify, locate, and retrieve the record[] in order to copy and mail [it] to the [requester] ." Id. This is consistent with the principle that "[public] agencies and employees are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time," OAG 76-375, p. 4, as well as the requirements of KRS 61.872(3)(b).
Given the circumstances of Mr. Franklin's confinement at Green River Correctional Complex, he cannot exercise the right of on-site inspection as codified at KRS 61.872(3)(a). He must instead "precisely describe" the records he wishes to access by receipt of copies through the mail. His inability to do so relieves the Jefferson County Clerk of the duty to conduct a search for a responsive record which may or may not exist, but which is clearly not "readily available within the public agency. " We find no error in the County Clerk's ultimate disposition of Mr. Franklin's open records request.
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.
Ralph Franklin, Jr., # 157745Green River Correctional Complex1200 River Road 3BL08P.O. Box 9300Central City, KY 42330-9300 Bobbie HolsclawJefferson County Clerk 527 West Jefferson StreetLouisville, KY 40202
Walker C. Cunningham, Jr.Assistant Jefferson County Attorney531 Court Place, Suite 1001Louisville, KY 40202
Footnotes
Footnotes
1 Mr. Franklin's request was submitted on Finance and Administrative Cabinet Form B-010-1, "Request to Inspect Public Records Re KRS Ch. 61."
2 Since Mr. Franklin is an inmate confined at Green River Correctional Complex, he is foreclosed from exercising the right of on-site inspection.
3 The record before us reflects ample confusion about the very existence of a property identified as 14502 Pauly Gap or 14502 Pauley's Gap Road in Jefferson County.
4 If a certified copy of a deed is requested, KRS 64.012 authorizes the County Clerk to charge five dollars for a copy. If the requester does not request a certified copy of a deed, KRS 61.874(3) authorizes the clerk to recover only her actual costs for reproduction not including staff costs. See, 00-ORD-110; 96-ORD-3.