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 Whitley County Fiscal Court violated the Open Records Act in the disposition of Randy Skaggs' June 12, 2006, request for financial and operational records relating to implementation of KRS 258.195 1 for the period from June 2005 through May 2006. Those records were specifically identified as:
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"
Mr. Skaggs agreed to prepay reasonable copying charges not to exceed ten cents per page and the cost of postage.
The Whitley County Fiscal Court responded to Mr. Skaggs' request by providing him with brief narrative responses to his requests and several responsive documents, but indicated that it could not furnish financial records, operating procedures, and employee information for the Knox-Whitley County Animal Shelter with which it contracts for the provision of animal control services. On appeal, Mr. Skaggs objects to the fiscal court's failure to provide him with financial records supporting its narrative responses. To the extent that the fiscal court maintains any such records that have not already been provided, including, but not limited to, its contract with the Animal Shelter and records documenting fees paid by the county for animal control services, we find that it is obligated to transmit these records to Mr. Skaggs upon prepayment of a reasonable copying charge and postage.
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:
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 Whitley County Fiscal Court went beyond its statutory duty in creating records containing some responsive information, and is to be commended for doing so. The fiscal court largely satisfied its statutory duty in producing responsive records and notifying Mr. Skaggs, per KRS 61.872(5), 2 where he could obtain additional records. Its only remaining duty is to produce responsive records in its custody relating to its financial arrangement with the Animal Shelter to include its contract with the Animal Shelter and records documenting fees paid to the Animal Shelter. The Kentucky Supreme Court has declared:
The public's right to know is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 328 (1992) (emphasis added). Disclosure of the records Mr. Skaggs seeks will clearly advance an open records related public purpose by enabling the public to monitor the fiscal court's compliance with KRS 258.195. The fiscal court must therefore immediately mail the records identified in Mr. Skaggs' request to him or notify him in writing that no responsive records exist.
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.
Footnotes
Footnotes
1 KRS 258.195 provides as follows:
(1) The governing body of each county shall employ, appoint, or contract with an animal control officer, or shall contract with an entity that employs, appoints, or contracts with an animal control officer, and shall establish and maintain an animal shelter as a means of facilitating and administering KRS 258.095 to 258.500. One (1) or more counties may enter into intergovernmental agreements for the establishment of regional animal shelters, or may contract with entities authorized to maintain sheltering and animal control services. Animal shelters shall meet the standards provided by KRS 258.119(3)(b) within three (3) years after July 13, 2004. Governing bodies may adopt additional standards and ordinances related to public health, safety, enforcement, and the efficient and appropriate operation of their shelters and their animal control programs.
(2) Cities may employ, appoint, or contract with animal control officers, or may contract with an entity that employs, appoints, or contracts with animal control officers, for the enforcement of this chapter and local animal control ordinances within their corporate limits. Cities may enter into agreements with the counties for the enforcement of the county's animal control ordinances. The agreement shall include, but shall not necessarily be limited to, setting out the jurisdiction and the duties of the animal control officer respective to the agreement.
(3) Animal control officers shall have the authority to issue uniform citations, local citations, or local notices for the enforcement of the provisions of this chapter, the provisions of the Kentucky Revised Statutes relating to cruelty, mistreatment, or torture of animals, and animal control ordinances in their respective jurisdictions.
2 KRS 61.872(5) thus provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.