Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Campbell County Fiscal Court violated the Kentucky Open Records Act in requiring Jeff Gearding to inspect certain records prior to receiving copies of same. Because Mr. Gearding apparently resides and works in the county where the records are located, KRS 61.872(3)(b) authorizes the agency to require inspection prior to providing the requested copies. Although the Fiscal Court initially provided the name of the records custodian but failed to provide his location, the Fiscal Court ultimately remedied this error and fully complied with KRS 61.872(4) .
By letter directed to the Campbell County Fiscal Court on November 3, 2009, Mr. Gearding requested the following records: 1
1) names and pay rates of all employees employed on August 1, 2008, not excluding any other compensation;
2) names and pay rates of all employees employed on August 1, 2009, not excluding any other compensation;
3) all disciplinary and investigative reports regarding employees for the years 2007, 2008 and 2009;
4) financial reports for the years 2008 and 2009, i.e. incoming money/checks and disbursements from jail accounts.
In a timely written response, Melissa Williams, Director of Administration, Campbell County Fiscal Court, advised Mr. Gearding in reference to Items 1 and 2 that the requested "information has been copied and is available." With regard to Item 4, Ms. Williams indicated that "portions of the FY 2008 and FY 2009 Campbell County Treasurer's Report that contain[] the financial information you are requesting" have been copied. In responding to Item 3, the Fiscal Court advised Mr. Gearding as follows: "This information is available. Please make an appointment with Jailer Greg Buckler at the [CCDC] to view the records. Mr. Buckler will make them available, and copy the pages you request. His phone number is 859-292-3870." Ms. Williams' understanding from their conversation that same day (November 9, 2009), was that Mr. Gearding would come by her office Tuesday, November 10, 2009, to "review and pick up the information" requested. 2 By letter dated December 12, 2009, Mr. Gearding initiated this appeal, challenging the disposition of his request as to Item 3 exclusively.
Upon receiving notification of Mr. Gearding's appeal from this office, Robert E. List, Assistant Campbell County Attorney, responded on behalf of the Fiscal Court. Citing KRS 61.872(4), Mr. List noted that its response "advised the requestor as to who was the custodian of the records. Melissa Williams advised the requestor that they could be viewed at the [CCDC]. Mr. Gearding is a former employee of the detention center and certainly knows that Mr. Buckler is the Jailer and where the detention center is located. The requirements of KRS 61.[8]72(4) were met." Mr. List further asserted that Ms. Williams "was only required to advise Mr. Gearding of the official custodian which she did." Acknowledging that Mr. Gearding "is not required to make an appointment, " Mr. List argued that Ms. Williams "went beyond what was required. Mr. Gearding never made an open records request to the custodian of the records and Ms. Williams was not required to forward the request to the custodian. "
Additionally, Mr. List correctly noted that Mr. Gearding "is a resident of Campbell County and nothing in his request suggested that he is employed outside of Campbell County." Citing KRS 61.872(3)(b), Mr. List observed that a public agency has to mail copies of records to a requester "who resides or has a principal place of business outside of the county where the records are maintained." However, a records custodian "can require the requester who is both a resident and employed in the county where the records are maintained to make an inspection of the records. [See 04-ORD-195]." In closing, Mr. List reiterated that "Mr. Gearding was advised that Mr. Buckler would make the records available to him for his viewing at the [CCDC] and would make copies of the pages that he requested. These records are available for Mr. Gearding to inspect at the [CCDC], [address provided]." In accordance with KRS 61.872(3)(b) and prior decisions, including 04-ORD-195, the Attorney General affirms the disposition of Mr. Gearding's request for disciplinary and investigative reports.
As a threshold matter, the Fiscal Court's response to Mr. Gearding's request cannot properly be characterized as a denial. Resolution of this appeal turns on the application of KRS 61.872(3) , pursuant to which:
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). As the Attorney General has often recognized, 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; 04-ORD-195. Thus, 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. Id. On the other hand, 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.
In our view, the analysis found in 04-ORD-195 is controlling on this issue; a copy of that decision is attached hereto and incorporated by reference. Because Mr. Gearding apparently lives and works in Campbell County, Kentucky, 3 and the records in question are located in Campbell County as well, Mr. Gearding is unable to satisfy the threshold requirement of KRS 61.872(3)(b); accordingly, the Fiscal Court/CCDC may require him to conduct on-site inspection of records which are potentially responsive prior to furnishing copies. See 08-ORD-132. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Although Mr. Gearding arguably satisfied that burden, the Attorney General makes no finding in that regard as Mr. Gearding is only required to satisfy the lesser standard of KRS 61.872(2) in order to conduct on-site inspection, which the Fiscal Court/CCDC, as noted, is authorized to require prior to providing him with copies. In light of this determination, the remaining question is whether the Fiscal Court otherwise complied with relevant provisions of the Open Records Act, namely KRS 61.872(4).
Pursuant to KRS 61.872(4): "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. " (Emphasis added). In this case, the Fiscal Court advised Mr. Gearding that the records being sought are in the custody of Jailer Greg Buckler at the CCDC and provided his telephone number. Although the Fiscal Court substantially complied with KRS 61.872(4) in doing so, and the record is devoid of any evidence to suggest bad faith, it failed to provide the address of the CCDC as required to fully discharge its obligations under this provision. As a former employee, Mr. Gearding would already have this knowledge, as Mr. List correctly argued on appeal, but no waiver of this requirement exists in the Act regardless of the circumstances presented. With the exception of this deficiency, which the Fiscal Court ultimately remedied, the Fiscal Court did not violate the Act in the disposition of Mr. Gearding's request.
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.
Jeff GeardingSteve PenderyJames A. Daley
Footnotes
Footnotes
1 Mr. Gearding noted that his request "pertains to [CCDC], but Campbell County Fiscal Court operates it."
2 Ms. Williams further advised that a fee of "$ .15 per page" would be charged for the copies requested. Although Mr. Gearding does not challenge the reasonableness of this fee, both the courts and this office have long recognized that a fee of $ .10 is reasonable within the meaning of KRS 61.874(3). Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985); see 01-ORD-136 (copy enclosed). Unless a public agency can substantiate that its actual costs, including the costs of media and mechanical processing but excluding staff costs, exceed ten cents per page, it is statutorily obligated to recalculate its copying charge to reflect either its actual costs or no more than ten cents per page. 08-ORD-171, pp. 3-4. See also 03-ORD-224 and 08-ORD-006.
3 Mr. Gearding provided this office with a home address in Wilder, Kentucky, which is located in Campbell County.