Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Ballard County Fiscal Court subverted the intent of the Open Records Act, short of denial of inspection, and within the contemplation of KRS 61.880(4), 1 in the disposition of Randy Skaggs' June 12, 2006, request for financial and operational records relating to implementation of KRS 258.195 for the period from June 2005 to May 2006. For the reasons that follow, we find that although the fiscal court went beyond its statutory duty in compiling information that was responsive to the request, and creating a new record containing that information, the fiscal court is, nevertheless, statutorily obligated to furnish Mr. Skaggs with existing documentation, and in particular, financial documentation, that supports the information compiled. The fiscal court may require advance payment of a reasonable copying fee, not to exceed ten cents per page, 2 and postage charges for reproduction and mailing of the requested records.
On June 12, Mr. Skaggs requested that the Ballard County Fiscal Court mail him copies of records identified as follows:
1. Records or documentation indicating, referring to, or pertaining to your county's "animal control officer"
2. Records or documentation indicating, referring to, or pertaining to your county's "animal control shelter"
3. Records or documentation indicating, referring to, or pertaining to your county's "application for financial help"
Having received no response to his request, Mr. Skaggs initiated this appeal on September 7, 2006. Given the volume of open records appeals he submitted on September 7, the Attorney General invoked KRS 61.880(2)(b)3. and extended the twenty working day time limit for issuing his decision by an additional thirty working days.
By letter dated October 5, 2006, Ballard County Deputy Judge/Executive Ron McAlister provided Mr. Skaggs with a single page letter containing narrative answers and a page from the telephone directory which apparently identifies the county's animal shelter by name, location, and telephone number. The fiscal court's efforts, in this regard, were commendable but not legally sufficient.
The Kentucky Open Records Act imposes no obligation on a public agency to create a record that does not already exist in order to satisfy a records request. Instead, the Act contemplates records access by means of on-site inspection or receipt of copies through the mail. KRS 61.872(3) thus provides:
(1) 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.
In construing the latter provision, this office has observed:
[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 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.
97-ORD-46, p. 3. The Ballard County Fiscal Court does not object that Mr. Skaggs' request was not framed with sufficient precision. Nor could it reasonably do so given the fact that it was able to locate records containing the information sought. While the fiscal court went beyond its duties and obligations in creating a record containing the responsive information, and is to be commended for its attempt to accommodate Mr. Skaggs, we hold that the requirements of the statute are not fully discharged until existing documents substantiating that information, such as payroll records, receipts, ledgers, bookkeeping entries, and all other responsive financial records are disclosed. The Open Records Act establishes the right of access to nonexempt public records. Acknowledging that the fiscal court's efforts in this matter were meritorious, we nevertheless conclude that the fiscal court must retrieve the records from which the information was extracted, calculate its actual costs at a rate of ten cents per page for copies, plus postage, notify Mr. Skaggs of the costs, and mail copies of those records to him upon receipt of this amount.
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.
Footnotes
Footnotes
1 KRS 61.880(4) provides as follows:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 The courts, and this office, have consistently held that ten cents per page represents a reasonable copying charge. See, Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and, e.g., 01-ORD-136.