Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Breathitt County Clerk violated the Kentucky Open Records Act in his disposition of Joseph H. Clark's request for a copy of a "transfer deed" by virtue of which he purportedly acquired title to land that he inherited from his mother, 1 Mrs. Golden Watkins. Because Mr. Clark was unable to "precisely describe" the record requested as required by KRS 61.872(3)(b), the Clerk fulfilled his obligation under the Open Records Act by informing Mr. Clark that his request would be honored upon receipt of the deed book and page number, advance payment of a reasonable copying fee, and postage.
In a "Request To Inspect Public Records" directed to the "CLERK: [BREATHITT] COUNTY COURT" 2 on June 17, 2003, Mr. Clark framed his request as follows:
On or around Jan[uary] 1992[,] Mrs. Golden Watkins passed away leaving no will! The executor of her estate transferred the title of her land to her so[le] survivor[,] Mr. Joseph Harold Clark (This we know because he has been assessed and pa[id] taxes on said land).
I, Joseph H. Clark, respectfully request a copy of the above mentioned transfer deed and the name of the executor of Mrs. Golden Watkins['s] estate.
If payment is required please notify me of the amount needed and I will forward the funds to you.
In a letter dated Jun 24, 2003, Brendon D. Miller, the Breathitt County Attorney, responded to Mr. Clark's request on behalf of Tony G. Watts, the Breathitt County Clerk, advising him as follows:
An open records request is not required to inspect a deed record[] that is open to the public during [the] normal office hours of the Breathitt County Clerk.
Any request received that has a deed book number and page number attached, the County Clerk will gladly [honor by returning a copy of the deed] to the address of the requester for a fee of $ .50 per copy[] and postage. However[,] the County Clerk does not search records for any request, nor does he render any opinions, he is only the recorder of public documents. Findings and opinions are left to those who are licensed to practice law.
Therefore, I am recommending you obtain the services of a local attorney, as we could not find a copy of the deed you referenced[] for Golden Watkins.
If any additional information is needed, please feel free to contact me.
Dissatisfied with the foregoing response, Mr. Clark directed a "legal letter" to Mr. Miller on July 2, 2003, requesting that he and Mr. Watts "reconsider their denial of information requested by Joseph Clark pursuant to KRS Ch. 61 on 6-17-03." According to Mr. Clark, Mr. Watts "failed to perform the statutorily mandated duties required under KRS [Ch.] 61" in that he did not complete the disposition section of the request form "as required by law." Emphasizing that the requested record is "NOT exempt from public inspection, " Mr. Clark further asserted that Mr. Watts must specify "at least one of the 12 reasons set out in KRS [Ch.] 61 that exempts the requested record [] from inspection" in denying a request.
Implicitly relying upon KRS 61.872(3)(b), Mr. Clark challenged the denial of his request on the basis that the deed is available "during normal office hours" since the address listed on his request form "clearly shows" that he lives in Fredonia, Kentucky, outside the county in which the requested records are located. 3 In his view, the name of the original land owner and the name of the person to whom the land was transferred by virtue of the deed "should be adequate information to enable the county clerk to easily retrieve the requested land transfer deed" because the deeds should be "filed, or at least cross-indexed" by name. As observed by Mr. Clark, "the whole point" of his request was that he did not know the deed book number or page number. Mr. Clark's legal aide advised him that "all of the above constitute a violation of his due process rights" under the Kentucky and United States Constitutions. Although his aide also offered to file an appeal on his behalf, Mr. Clark opted to submit a request for reconsideration "because he wanted to try a more diplomatic approach" given Mr. Miller's offer to provide additional information if needed.
In a response dated July 9, 2003, Mr. Miller reiterated that "it is not the County Clerk's responsibility to search the records for you, but only to make them open for your inspection. " According to Mr. Miller, if Mr. Clark specifies the document that he wishes to receive, "it will certainly be provided." As a courtesy, Mr. Miller did search the Grantor/Grantee index at the Clerk's office and "found that there is no deed of record from Golden Watkins, or Golden Watkins (Hollister) to [] Joseph Harold Clerk. " Furthermore, Mr. Miller "did not locate any deed from Corsie or Florence Watkins 4 to Golden Watkins, from 1950 forward." Although the document that Mr. Clark requested was "not available," 5 Mr. Miller did locate the will of Corsie Watkins at Page 400 of Will Book 2, a copy of which he enclosed with his response to Mr. Clark. With respect to the civil litigation involving Olie Watkins and Anna Rodriguez 6 referenced by Mr. Clark in his correspondence, Mr. Miller offered the following insight:
The case number of that matter is Breathitt Circuit Court 02-CI-00132, and those records may be requested from the Breathitt Circuit Clerk, not the Breathitt County Clerk. This information revealed to me that I have been hired [to testify] as an expert witness concerning the title to the property in that matter and have done a title search for the exclusive use of Mr. Olie Watkins and his counsel[,] Hon. Donna Hale[,] in Stanton, Kentucky. I may not release any information concerning that property without their consent. Mr. Hale's number is []. [Y]ou may contact h[im] for more information.
Once you obtain records of the action from the Breathitt Circuit Clerk, then you may request specific documents from the Breathitt County Clerk that can be supplied to you at a cost.
Mr. Clark now appeals from the foregoing disposition of his request.
On appeal, Mr. Clark contends that Mr. Watts violated the Open Records Act in failing to provide him with copies of all of the records relating to his "Mom and grandpa [']s will and land." Relying upon KRS 61.882(5), the penalty provision of the Open Records Act, Mr. Clark asserts that he should be awarded twenty-five dollars for each day that he was denied the right to inspect the requested record beginning with the date of his request.
In a supplemental response received by this office following commencement of the instant appeal, Mr. Miller summarizes the content of his initial response before clarifying that Mr. Clark's request was not denied. Rather, "there was not sufficient information given to [grant] the request." Although he did not believe that Mr. Watts had a duty to respond to Mr. Clark's request, Mr. Miller assisted Mr. Watts in searching "for a deed from Golden Watkins to Joseph H. Clark" as Mr. Clark requested but "found none of record." Observing that Mr. Clark apparently viewed his initial response as a denial of his request, Mr. Miller further emphasizes that he "again checked the Clerk's Office for documents" upon receiving Mr. Clark's request for reconsideration and "fully indicated the results to Mr. Clark in a letter dated July 9, 2003." Having reviewed the "title opinion" that he prepared in his capacity as an expert witness for the aforementioned civil action, Mr. Miller confirmed that "it does not include any property that was transferred to Golden Watkins by the Will of Corsie Watkins" as indicated by Mr. Clark. In closing, Mr. Miller reiterates that he did locate the will of Corsie Watkins, a copy of which he enclosed with his second letter to Mr. Clark.
Upon receiving notification of this appeal, Mr. Watts responded to this office in a letter dated December 16, 2003. Echoing the views expressed by Mr. Miller, he explains that "by policy all open records request[s] are channeled through the County Attorney's office." According to Mr. Watts, he cannot conduct research because he has "no statutory authority to render any legal opinions or findings." Further, he does "not wish to invite litigation upon [him]self and [his] staff [resulting from] any information being misconstrued or liabilities that may arise from the search of records." Whenever a request for documents is received by his office, the "documents are promptly ascertained and forwarded [] to the request[er]" assuming the deed book number and page number are provided. Acknowledging that records located in his office are public records, Mr. Watts emphasizes that an "open records request is not necessary to obtain documents" and specifies his office hours during which the records are available for inspection. In his supplemental response, Mr. Clark again requests "all the paperwork on [his] grandpa's land." Although Mr. Clark elaborates upon his earlier allegations of wrongdoing, his arguments on appeal essentially mirror those previously outlined.
KRS 61.872 establishes the guidelines for accessing public records. Pursuant to KRS 61.872(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. (Emphasis added).
Said another way, the Open Records Act contemplates access to records "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. " 03-ORD-067, p. 4. Therefore, a requester that 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. Id. "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 the 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." Id., p. 5. (Emphasis added).
In construing this provision, the Attorney General has said:
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 KS 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.
Id., citing 97-ORD-46, p. 3.
As we observed at page 5 of 03-ORD-067, supra, a county clerk's office "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided." When a requester provides the clerk with this precise information, "the clerk is required to mail [the requester] a copy of the deed upon prepayment of reasonable copying charges not to exceed ten cents per page 7 and postage charges." Id. If the requester is unable to provide this precise information, however, 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] ." 97-ORD-46, supra, p. 3 (Emphasis added); 03-ORD-067, supra. This conclusion is both consistent with the requirements of KRS 61.872(3)(b) and a logical extension of 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; 03-ORD-067. In light of this dispositive authority, we conclude that Mr. Watts went above and beyond his statutory duty in searching for the deed at issue since the precise information required was lacking.
Given Mr. Clark's confinement at EKCC, he is foreclosed from exercising the right to on-site inspection of the requested record codified at KRS 61.872(3)(a). Instead, he must "precisely describe" the record "which he wishes to access by mail. " Mr. Clark's inability to satisfy this threshold requirement "relieves the [Breathitt] County Clerk of the duty to conduct a search for a responsive record which may or may not exist," but that is clearly not "readily available within the public agency. " 03-ORD-067, p. 6. Accordingly, we find that Mr. Watts did not violate the Open Records Act in his disposition of Mr. Clark's open records request.
A party aggrieved by this decision may appeal it by initiating an 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 Although Mr. Clark identifies himself as the only son of Mrs. Watkins throughout the documentation attached to his appeal, attached to the response filed by the Breathitt County Attorney on appeal is a copy of a letter dated November 19, 2003, in which Mr. Clark alleges that Mrs. Watkins stole him at birth from his biological mother, a Miss Stewart, in 1968. As the true identity of Mr. Clark's mother is not germane to the resolution of this appeal, for purposes of our analysis we will assume that Mrs. Watkins is Mr. Clark's mother.
2 Although Mr. Clark actually refers to the "Jackson County Court," the Breathitt County Clerk was the intended recipient as evidenced by a review of the documentation related to his appeal.
3 Since Mr. Clark is an inmate at Eastern Kentucky Correctional Complex, his statutory right to on-site inspection is foreclosed.
4 As explained by Mr. Clark, Golden Watkins is the daughter of Corsie Watkins.
5 As we observed in 03-ORD-205, this office "has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist." Id., p. 3, citing 93-ORD-134; 99-ORD-98. An agency discharges its duty under the Open Records Act by affirmatively so stating. 03-ORD-205, p. 3, citing 99-ORD-150. Although occasions may arise when the Attorney General requests that an agency substantiate its denial of a request based on the nonexistence of records by demonstrating its efforts to locate the records or explaining why no records were generated, this issue does not warrant further inquiry on the facts presented. 00-ORD-83, p. 6. Therefore, even if existing precedent interpreting KRS 61.872(3)(b) in this context did not dictate a resolution in favor of Mr. Watts, the outcome would be the same.
6 Apparently, Olie Watkins is Mr. Clark's uncle and Anna Rodriguez is his cousin.
7 KRS 64.012authorizes the county clerk to charge five dollars for a copy of the deed if a certified copy is requested. If a certified copy is not requested, KRS 61.874(3)authorizes the clerk to recover only the actual cost of reproduction excluding the cost of staff required. See 03-ORD-067, supra; 00-ORD-110; 96-ORD-3.