Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the Owen County Clerk violated the Open Records Act in the disposition of Dorothia Wilson's March 18, 2006, requests to inspect:
[1] All completed tax rolls from 1860-2001 pertaining to the owners of Mountain Island, now designated as 6.8 AC, Map Number 93-19 on a Residential Card, and 21 farm acres, Map Number 93-16, 57 farm acres, Map Number 93-9, and 47 farm acres, Map Number 93-17 on Farm Property Data Cards[;]
[2] The "Arnold, Nat Lee, and Lucas L, 125 acres, R. J. W., Clk." Document which shows the island divided into 21 lots and which was to be inherited by the Herndon devisees . . . . referenced as being of record in Mountain Island in Owen County, Kentucky: the Settlers and Their Churches by James C. Bryant.
Additionally, we are asked to determine if the Owen County Clerk violated the Act in failing "to adopt rules and regulations which conform to the Open Records Act, and display these in a prominent location which is accessible to the public." In each of her requests, Ms. Wilson admonished the Clerk that:
KRS 61.880(1) envisions the production of records, not copies through the mail in the absence of such a request, on the third business day after receipt of the request. You must retrieve the records in order to make them available for on-site inspection and designate the place, time, and earliest date on which the records will be available for inspection.
For the reasons that follow, we affirm the Clerk's disposition of Ms. Wilson's request for "[t]he 'Arnold, Nat Lee, and Lucas L, 125 acres R. J. W., Clk. . . . [d]ocument which shows the island divided into 21 lots," the dispute relating to that request having been resolved in 06-ORD-072, a copy of which is attached hereto and incorporated by reference. We do not, however, affirm the Clerk's disposition of Ms. Wilson's request for "completed tax rolls from 1860-2001 pertaining to the owners of Mountain Island," and find that her apparent failure to adopt and display rules and regulations conforming to the Open Records Act constitutes a violation of KRS 61.876(1) and (2).
By letters dated March 20, 2006, Owen County Clerk Mary Kay Duncan notified Ms. Wilson that the "Arnold, Nat Lee, and Lucas L, 125 acres, R. J. W., Clk." document "is not located in the Owen County Clerk's Office and it is not known where it can be located." With reference to Ms. Wilson's request for "completed tax rolls from 1860-2001 pertaining to the owners of Mountain Island," Ms. Duncan advised that "[t]hese records are not available in my office but are located in the office of the Property Valuation Administrator . . .[,] Lee Cochran[,] and her office is located in the Owen County Courthouse." Ms. Duncan did not respond to Ms. Wilson's request that her office adopt and display rules and regulations conforming to the Open Records Act. Shortly after Ms. Wilson initiated this appeal, Charles E. Carter, Owen County Attorney, confirmed that the requested "plat is not in the Owen County Clerk's office nor are the tax rolls . . . ." Like Ms. Duncan, Mr. Carter did not address Ms. Wilson's concerns about the County Clerk's failure to comply with KRS 61.876(1) and (2).
Resolution of the question whether the Owen County Clerk properly responded to Ms. Wilson's request for the "Arnold, Nat Lee, and Lucas L, 125 acres, R. J. W. Clk." document turns on the existence of a previously issued open records decision directly addressing this issue. In 06-ORD-072, a copy of which is attached hereto, this office was asked to determine if the Owen County Clerk violated the Open Records Act in the disposition of a nearly identical request submitted by Aaron Wilson. In that decision, the Attorney General concluded that Ms. Duncan's actions were entirely consistent with the Act insofar as she conducted a search, albeit an unproductive one, for a responsive record, and, having determined that none existed within her office, promptly so notified Mr. Wilson. At pages five and six of 06-ORD-072, we referenced an earlier decision of this office, 03-ORD-067, in which we held that although the county clerk "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided, it is not incumbent on the clerk 'to make extraordinary efforts to identify, locate, and retrieve the record'" if the requester fails to provide this precise information. 03-ORD-067, p. 5. Fundamental to these holdings was the recognition 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, cited in 03-ORD-067 and 06-ORD-072. The Owen County Clerk has extended an offer to Ms. Wilson to conduct her own search for a responsive record or records the Clerk was unable to locate on the scant information provided. The Open Records Act requires nothing more. 1
In the same decision, the Attorney General was asked to determine if the Owen County Clerk properly denied custody of the Owen County Tax Rolls for a period of time dating back to 1856. We affirmed the Clerk's denial, noting that she had fully complied with the Act, specifically KRS 61.872(4), 2 by so notifying Mr. Wilson and furnishing him with the name and location of the official custodian of the tax rolls, to wit, the Owen County Property Valuation Administrator. On closer examination, we find that our holding was in error. While it is true that the PVA is initially responsible for the maintenance and retention of the property tax roll, the tax roll is to be "[t]ransferred to the respective County Clerk's Office after five years, and audit" per KRS 133.047 and the Revenue Cabinet Records Retention Schedule established by the State Archives and Records Commission at Series No. 03366. (Copy enclosed. ) The County Clerk is thereafter responsible for the permanent maintenance and retention of the tax roll per the County Clerk Records Retention Schedule established by the Commission at Series No. L1433. (Copy enclosed. ) Simply stated, we are unaware of any authority supporting the Owen County Clerk's position that she is not the custodian of the requested tax rolls. This being the case, we find that she subverted the intent of the Open Records Act, short of denial of inspection and perhaps unintentionally, by misdirecting Ms. Wilson to the Owen County Property Valuation Administrator. Ms. Duncan must, therefore, afford Ms. Wilson access to the requested tax rolls or otherwise explain her failure to comply with KRS 133.047 and applicable records retention requirements.
In closing, we find that the Owen County Clerk's apparent failure 3 to adopt rules and regulations conforming to the Open Records Act and display those rules and regulations in a prominent location accessible to the public constitutes a violation of the Act. In decisions dating back to 1976, this office has held that KRS 61.876(1) and (2) are facially unambiguous, requiring agencies to adopt and post open records rules and regulations, and declared that the failure to do so constitutes a violation of the Act. In a later decision, the Attorney General opined that "the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request," and that the referenced provision "is aimed at protecting the public by requiring a public agency to educate individuals on its particular policies and practices relative to open records." 94-ORD-12, p. 6. The statute is also aimed at protecting the public agency from excessive disruption of its essential functions and its records from damage and disorganization. 99-ORD-141, p. 8. "The spirit of the Act," we have observed, "mandates the broadest possible dissemination of an agency's rules and regulations, although the letter of the law does not specifically designate where the rules must be posted." 93-ORD-83, p. 4.
KRS 61.876(1) "establish[es] a minimum standard for agency compliance." 95-ORD-49, p. 4. An agency:
complies with this provision if it adopts rules and regulations limited to the items set forth in KRS 61.876(1)(a) through (d), or if it adopts more comprehensive rules and regulations supplementing the list of items.
So long as those rules and regulations conform to the provisions of the Open Records Act, and do not fall below the minimum standard set forth in KRS 61.876(1), the agency fully complies with the law. 4 We urge the Owen County Clerk to review KRS 61.876(1) and (2) and immediately implement the requirements set forth in those statutes by adopting and posting open records rules and regulations for her office.
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.
Distributed to:
Dorothia L. Wilson101 Flintroy CourtGeorgetown, KY 40324-1835
Mary Kay DuncanOwen County Clerk 135 West BryanOwenton, KY 40359
Charles E. Carter, Jr.Owen County AttorneyP.O. Box 307Owenton, KY 40359-0307
Footnotes
Footnotes
1 We note that this office also defined the obligations of the county clerk relative to "retrieval" of records for which a precise description was not provided in 06-ORD-072, and again in 06-ORD-76. We therefore will not belabor this issue.
2 KRS 61.872(4) thus provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
3 Neither the Owen County Clerk nor the Owen County Attorney contests Ms. Wilson's allegation in this regard.
4 The Owen County Clerk may wish to reference 200 KAR 1:020 Section 6 containing a template for open records rules and regulations and adapt the template to her office's particular needs.