Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Campbell County Detention Center violated the Open Records Act in the disposition of Terry Whittaker's July 28, 2008, request to inspect any personnel records "available under the Open Records Act" relating to former employee Michael J. Petri. For the reasons that follow, we find that the Center subverted the intent of the Act, short of denial of inspection, by requiring Ms. Whittaker to produce identification as a condition to inspecting the requested records and refusing to accept payment for copies of those records to be mailed to the address appearing on her request as an alternative to onsite inspection.
In her letter of appeal, Ms. Whittaker states that she contacted the Center on the morning of July 31, 2008, to ascertain the status of her request. She received a return telephone call from the Center at 3:30 p.m. and was advised that the records were available for inspection. Upon arrival, the window clerk informed Ms. Whittaker that she must produce identification. Over her protests and assertions that she did not have her identification, Ms. Whittaker was repeatedly advised that the Center "could not provide [her] the documents unless [she] show[ed] identification. " As an alternative, Ms. Whittaker proposed that she pay the $ 3.90 copying and postage fee "and have the documents sent to the address on the faxed Open Records Request." She indicates that the Center also rejected this proposal as well as her request that the Center provide her with a written denial.
By letter dated August 5, 2008, Lt. Col. James A. Daley responded to Ms. Whittaker's letter of appeal. He maintained that the only issue properly presented to this office was "the request by staff for Ms. Whittaker to provide identification to show that she was in fact who she claimed to be." Lt. Col. Daley explained:
Ms. Whittaker either refused to provide or was unable to provide identification. It was explained to the subject (Ms. Whittaker) that we were not concerned with identifying a person making a valid open records request but that we wanted to make sure that the person who had requested the records was in fact the person picking up the copies of the records. If the person picking up the records was not Ms. Whittaker, we would have requested a signature of that individual as proof of who the records were given in the event the actual requester did not receive the records.
At no time was there a denial of the written request submitted to Ms. Whittaker, the records had been copied and the personal identifiers redacted in a manner that would expedite provision of the requested records. Staff at the facility were quite simply trying to make sure they were giving the records to the correct person. When Ms. Whittaker was unable/refused to provide identification for this specific person she was informed that the records would be placed in the mail to the address on the original request. The requested documents were in fact sent out in the U.S. mail the following morning, within the statutory three day period. 1
With reference to Ms. Whittaker's assertion that the Center refused to accept payment for copy and postage fees while she was on agency premises, Lt. Col. Daley stated that "staff explained to her it was not necessary for her to pay any fee at that time and that a bill would be sent with the records to the name and address of the requester. " It was the Center's position that "[t]he decision was made to . . . mail the response with a bill for records so that the [requester] would receive them in a timely manner," and that she could return any unwanted copies and pay for only those copies she wanted.
Whatever the Campbell County Detention Center's reasons for requiring Ms. Whittaker to produce identification before inspecting the records identified in her July 28, 2008, request, the Open Records Law does not authorize public agencies to impose such a requirement on any requester for any reason. Its actions therefore subverted the intent of the Open Records Law, short of denial of inspection, and within the meaning of KRS 61.880(4). 2 KRS 61.872(2) provides as follows:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
In construing this provision, the Attorney General has long recognized:
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
94-ORD-101, p. 3. In an early open records decision, this office reasoned:
Public agencies may put into their regulations the requirements for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted.
OAG 76-588, p. 2.
Prompted by these observations, in 1995 the Attorney General expressly declared that "a person requesting public records is not required to state why he wishes to inspect the records or to produce an I.D. in order to see the records," and that an agency attempting to impose either of these requirements "is acting contrary to the intent of the Open Records Act, per KRS 61.880(4), by imposing unauthorized requirements on records access." 95-ORD-33, p. 1 (emphasis added); accord, 95-ORD-88; OAG 81-345. Nothing in KRS 61.872(2), or any other provision of the Open Records Law, authorized the Kenton County Detention Center's action in this regard, and Ms. Whittaker's inability or unwillingness to produce her identification did not provide a legally recognized basis for postponing her access to the requested records.
Nor can this office approve the Center's disposition of her offer to prepay the copying and postage fees while she was on agency premises. Since the records had been compiled, and the fees calculated at $ 3.90, the Center again had no legally recognized basis for declining her offer. While, in our view, Ms. Whittaker was entitled to inspect and/or obtain copies on July 31, she was willing to accept delivery by mail at "the address on the faxed Open Records Request." If there were any questions as to her identity or entitlement to the records, those questions should have been resolved to the Center's satisfaction when she agreed to prepay and await receipt of the copies at the address appearing on her request. Again, the Center's actions in this regard find no support in the Open Records Law or any authorities construing it, and represent an impermissible impediment to Ms. Whittaker's, and the public's, right of access.
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 In subsequent correspondence, the Center acknowledged the inadvertent omission of Mr. Petri's application, indicating that the document "has since been forwarded to Ms. Whittaker . . ." Ms. Whittaker subsequently acknowledged receipt.
2 KRS 61.880(4) provides:
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 records had been denied.