Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the City of Inez relative to the open records request of Richard K. Penix violated the Open Records Act. For the reasons that follow, we find that the City did not violate the Act.
By letter dated March 7, 2003, Mr. Penix, Mayor of the City of Inez, submitted an open records request to the City Clerk for copies of the certain records. By letter date March 11, he requested:
- Current personnel policy
- All mileage logs
- LGEA Restrictions
- Administration costs
- Members of Blighted and Deteriorated Property Board and the amount and date paid to them
- Back up disc for clerk's computer including Quickbooks
- Minutes that reflect the vote to let Jeff Spence take a City vehicle home
- A copy of Sheila Hardin's log of events
- Copy of Mitchell Williamson's two garnishments
- Minutes of all June meetings including 1997, 1998, 1999, 2000, 2001, 2002 and the December Special Meeting, 1998
- A copy of the unedited tape of Ann Maynard in office on 02/10/03 and all other tapes of Ann Maynard
By letter dated March 11, 2003, Candy J. Crum, Acting Clerk/ Treasurer responded to Mr. Penix's request, advising him:
Please be advised I have listed each item you requested and I will make available any record as stated in the following answers during the regular business hours of Inez City Hall, which are 9 a.m. to 1 p.m. Monday through Friday. In order to have all records available that I maintain or have custody and control of, please advise as to the date and time you would like to make your inspection. If you have not concluded your inspection during the regular business hours I will make the records available to you for inspection the next day of regular business.
Addressing his specific requests for current personnel policy, LGEA restrictions, and the Minutes of all June meetings including 1997, 1998, 1999, 2000, 2001, 2002 and the December Special Meeting, 1998, Ms. Crum advised those records were available for Mr. Penix's inspection. She also advised that the copy of the two garnishments would be provided for inspection if they were found in City files.
In response to the requests for all mileage logs and administrative costs, Ms. Crum asked him to clarify those requests to enable the agency to identify and locate the requested records and agreed to provide the minutes that reflect the vote to let Jeff Spence take a City vehicle home for inspection, if Mr. Penix would provide the date of the minutes.
In response to the request for members of the Blighted and Deteriorated Property Board, the amount and date paid to them, the Ms. Crum advised there were no members on the board at this time according to the ordinance.
In response to the request for the backup disc for the clerk's computer, including Quick Books, Ms. Crum advised that this was not a public record and, thus, she could not provide that information.
In response to the request for a copy of Sheila Hardin's log of events, Ms. Crum advised that it was not a record the City Clerk/ Treasurer maintained at City Hall and was not a public record and further advised that he would have to contact Ms. Hardin for that document.
In response to the request for the tapes of Ms. Maynard, Ms. Crum advised that the tapes were not in the clerk's possession and thus she could not provide them to him.
In his letter of appeal, dated March 26, 2003, Mayor Penix acknowledged the City's response that it would make its records available for his inspection, but argues that he "did not ask to inspect but for the records to be copied" and made available for him, "as the City Hall is now a hostile work environment" for him. In explaining his claim that a hostile work environment existed at City Hall, Mr. Penix indicated that the City Commission had voted to change the locks at City Hall and a City Commissioner had refused to give him a key to City Hall and had stayed at City Hall during business hours attempting to argue with him. He further indicated that, as of the date of his letter of appeal, he had not received any of the information he had requested.
After receipt of Notification of the appeal and a copy of the letter of appeal, J. Thomas Hardin, City Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Hardin advised:
The Inez City Commission would respectfully request the Open Records Appeal of Richard K. Penix be denied. Mr. Penix has failed to comply with the statutory requirements of KRS 61.872. Specifically, Mr. Penix has failed to review the documents prior to requesting copies, to determine which specific documents he wishes copied. As you can see from the request, the documents he requested are voluminous and vague. The City Clerk has responded to Mr. Penix and indicated that all documents are available for his inspection, except for documents not in her possession.
We are asked to determine whether the action of the City requiring Mr. Penix to inspect the requested records prior to receipt of copies violated the Open Records Act. For the reasons that follow, we conclude that this requirement did not violate the Act.
Addressing this issue, if Mr. Penix both resides and works in Martin County, he may be required to make an on-site inspection. If he works outside Martin County, the public agency would be in error in refusing to furnish him with copies of records that are precisely described and readily available within the agency. On this issue, the Attorney General has observed:
KRS 61.872(3)(a) and (b) states:
(3) A person may inspect the public records:
In construing KRS 61.872(3)(a) and (b), the Attorney General has observed:
The statute . . . 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 . . . . [w]e believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records . . . . 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. [But] 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.
96-ORD-186, p. 3.
A requester who both lives and works in the county where the records are maintained, falls within the former category, and can be required to conduct an on-site inspection as a precondition to receipt of copies. Mr. Penix's requests and letter of appeal indicate his address is Inez, Kentucky, and obviously as Mayor of Inez he would work in the City, which is located in Martin County. Thus, we conclude that the City's response requiring that Mr. Penix inspect the requested records prior to the receipt of copies was proper and did not constitute a violation of the Open Records Act. If any open records issues remain after Mr. Penix's inspection of the records at issue remain, he may initiate a new appeal to this office.
We address next Mr. Penix's claim of a hostile environment in which to inspect the records. In 02-ORD-094, the Attorney General examined a public agency's duty under KRS 61.872(1) to provide suitable facilities for the exercise of the right of inspection. At pages five through seven of that decision, we stated:
In 93-ORD-39, this office analyzed KRS 61.872(1), requiring public agencies to make suitable facilities available for exercise of the right of inspection, and KRS 61.876(1), requiring public agencies to adopt rules and regulations aimed at providing "full access to public records . . .," and "assistance and information upon request . . . ." There we concluded that a city manager's abusive conduct toward a requester subverted the intent of the Open Records Act by creating an atmosphere so hostile that it precluded the requester from effectively inspecting the records. We observed:
93-ORD-39, p. 3. In 98-ORD-69, we took this analysis one step further and concluded that although "the requester cannot expect the agency to provide facilities which are large enough to accommodate an army of advisors and analysts, he may certainly expect that the facilities will comfortably accommodate the individuals working in concert or entirely independently." 98-ORD-39, p. 6. We concluded that "[a]s in all matters not specifically addressed by the Open Records Act, we apply a reasonableness standard." Id.
Nevertheless, this office has approved the practice of assigning an employee to oversee inspection of public records as long as the agency does not condition exercise of the right of inspection on the availability of the employee. 93-ORD-48; 99-ORD-44. In 93-ORD-48, we observed:
93-ORD-48, p. 2.
Mr. Penix suggests he has been subjected to abusive conduct. Speculation as to what might occur in the future is not sufficient to support a claim of subversion of the intent of the law. 00-ORD-094. The City should provide suitable facilities that will afford Mr. Penix adequate opportunity to inspect the records without interruption, and without harassment.
In his appeal, Mr. Penix also asks this office whether he could obtain an injunction against the Commissioner to prevent her from disrupting work at City Hall. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Thus, we do not address that issue. Our review is confined to the issue of whether the City violated the Open Records Act in its handling of Mr. Penix's request, which, as noted above, we concluded it did not.
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 proceedings.
Distributed to:
Richard K. Penix, MayorP.O. Box 540Inez, KY 41224
Candy Crum, Acting City Clerk City of InezInez, KY 41224
J. Thomas HardinAttorney for City of InezMain StreetP.O. Box 1416Inez, KY 41224