Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Carter County Judge-Executive, Charles Wallace, violated the Open Records Act in the disposition of Roger D. Haney's July 6 and October 6, 2011, requests for certified copies of certain deeds and maintenance easements. For the reasons that follow, we conclude that the Judge-Executive did not violate the Act.
In an undated letter received by Judge-Executive Wallace on July 6, 2011, Mr. Haney requested "certified copies of any deeds of conveyance or maintenance easements for the roadway, located upon my property and verified by deeds, formerly known as Joe Branch Road located on Wilson Creek Road in Carter County." On July 20, 2011, Carter County Attorney Patrick Flannery replied: "Please be advised that all records of conveyance of interest in real property in Carter County are recorded in the office of Mike Johnston, the Carter County Clerk. All of the documents you requested are readily available to the general public and certified copies can be obtained by going to the Carter County Clerk's Office and supplying that office with the required fees."
We note that the 14-day period which elapsed between receipt of Mr. Haney's initial request and the issuance of a written response constituted a procedural violation of KRS 61.880(1), which requires a written response within three (3) business days. This is mitigated, however, by the fact that Mr. Haney's initial request only asked that the records be produced "within ten days of the date of delivery of this request." Furthermore, the County Judge-Executive complied with the procedural requirement of KRS 61.872(4) to inform the applicant of the correct custodian of records when a request has been directed to the wrong office.
On October 6, 2011, according to a copy of a letter Mr. Haney provided with his appeal to this office, he again addressed the County Judge-Executive and stated:
Title searches by our county clerk and me did not locate these documents.
I am now making a second request under the open records act for you to send me a copy of these documents and a copy of the fiscal court meeting and also the resolution taking this roadway into the county road system or a letter stating no such documents exist and this roadway is not a county road.
This office received Mr. Haney's appeal on November 2, 2011. The Carter County Attorney responded to the Attorney General on November 7, 2011:
I had no knowledge of the October 6, 2011 letter and saw it for the first time upon receipt of your notification [of this appeal]. That being said, this letter appears to further request documents that, if retained, are done so in the County Clerk's office. All Fiscal Court meeting minutes and resolutions are recorded in the County Clerk's office and are public records. Mr. Haney's request for Judge Wallace to generate a letter containing statements regarding the status of a roadway is a different request than was made in July. I do not know what response was or wasn't given to Mr. Haney, but I do know that the resolutions should also be recorded in the County Clerk's office.
Not having sufficient information to determine whether any written response was made to the October 6 letter, we merely note that the failure to do so would have constituted a procedural violation of KRS 61.880(1) and a constructive denial of the request.
Substantively, we do not believe the County Judge-Executive violated the Open Records Act. The Act does not create a universal right to obtain copies of public records by mail. Rather, the basic right is described in KRS 61.872(2) as "the right to inspect public records. " (Emphasis added.) KRS 61.872(3)(b) gives some applicants the option of obtaining copies by mail instead of inspecting the records, but it is only those applicants whose "residence or principal place of business is outside the county in which the public records are located." Since Mr. Haney resides in Carter County, he does not fall within this category. Assuming that to be true, the public agency having custody of the records could lawfully require him to inspect the records in person and make any copies himself, or present to the clerk the particular records he had located for the production of certified copies. Cf. 09-ORD-173, p. 4.
Furthermore, the County Judge-Executive, through the County Attorney, properly informed Mr. Haney on July 20, 2011, that his office did not possess the type of records Mr. Haney sought; rather, they were in the custody of the County Clerk. Mr. Haney in fact conducted a search of the records in conjunction with the County Clerk and did not find any responsive documents. Any request for a "certification of no record" should have been directed to the County Clerk; in any event, however, the Open Records Act does not require a public agency to generate a record that does not already exist. 05-ORD-151. Similarly, the Act does not require a response to requests for information. 03-ORD-028. Accordingly, we conclude that the Carter County Judge-Executive committed no substantive violation of the Open Records Act.
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.
Distributed to:
Roger D. Haney, Sr.Hon. Charles WallacePatrick Flannery, Esq.