Opinion
Opinion By: Jack ConwayAttorney General;Amye L. BensenhaverAssistant Attorney General
Open Records Decision
Lawrence Trageser appeals the Spencer County Fiscal Court's response to his September 4, 2014, request for "all records reflecting the executive order by Bill Karrer involving signs erected on county right of way and taking effect on or about September 17, 2014." In a response inexplicably dated August 19, 2014, 1 an employee of then Spencer County Attorney Ruth Hollan notified Mr. Trageser that the requested records "are available at the Spencer County Clerk's Office." Referencing "a previous Kentucky Attorney General Opinion," the employee maintained that "all requests for records from the Spencer County Clerk's Office must be directly [sic] to the Spencer County Clerk." She noted that the "record can be found in the Executive Order Book located in the Spencer County Clerk's Office."
On appeal Mr. Trageser acknowledges that "the records may be located in the files of the Spencer County Clerk's Office," but asserts that the records "originated in the Spencer County Judge/Executive's Office" and that "the Spencer County Deputy Judge/Executive Karen Curtsinger advised [him] that she possessed a copy." He also noted that the Deputy Judge/Executive "is responsible for creating, updating, and posting the fiscal court minutes on line, which includes the minutes and documents of that meeting held on 9/3/2014." "The Executive Order," Mr. Trageser concluded, "appeared in those minutes. " In his supplemental response to the appeal, the current Spencer County Attorney did not refute Mr. Trageser's statements but reiterated that "[t]he executive order book is located in the Spencer County Clerk's Office, the correct custodian of these records." 2
In 12-ORD-167 Mr. Trageser was admonished for failing to submit an open records request addressed to the Spencer County Deputy Judge/Executive to the Spencer County Attorney under an open records policy implemented by the county in January 2012. Under the terms of the policy, all county departments, except for the Spencer County Clerk 3 and the Spencer County Sheriff, 4 were required to prominently post written notice that "All open records requests must be submitted to the Spencer County Attorney's Office, 7 West Main Street, Taylorsville, KY 40071." This office approved the county's policy based on past open records decisions, reasoning that if it were consistently applied and did not impede timely access to public records, the "'policy of processing open records through . . . [one office]' . . . promotes 'uniformity and adherence to the law.'" citing 93-ORD-134. We subsequently determined that the Spencer County Sheriff's Department subverted the intent of the Open Records Act, under KRS 61.880(4), by requiring Mr. Trageser to submit an open records request to the Spencer County Attorney despite the fact that the Sheriff's posted rules and regulations governing access to public records 5 identified Sheriff Buddy Stump as the department's "official custodian. " In an open records decision issued in February 2014, we affirmed the Spencer County Clerk's right to impose copying fees of fifty cents per page, under express authority of KRS 64.019(2)(a), for copies of records produced in response to an open records request submitted by Mr. Trageser and addressed to the Board of Elections. 6 Those records were maintained solely by the county clerk in her statutory role as chairwoman of the Spencer County Board of Elections 7 and resided in no other agency's custody.
Although Mr. Trageser initiated this appeal on January 1, 2015, the policies in existence in 2014 prevailed at the time of his request for the specified executive order. Under those policies, he was obligated to submit his request for records of the Spencer County Fiscal Court to then Spencer County Attorney Hollan. He did so and thereafter received a timely written response redirecting him to the Office of the Spencer County Clerk. If the Office of the Spencer County Clerk were the only agency in whose custody the executive order resided, this would have been an appropriate response under KRS 61.872(4). 8 The Deputy County Judge/Executive advised Mr. Trageser, at the time of this request, that she maintained a copy of the order and a copy could, no doubt, have been printed from the county's website which the deputy judge/executive managed. Where, as here, the requested record was in the undisputed possession of the fiscal court, it was a record of the fiscal court pursuant to KRS 61.870(2), and the fiscal court was obligated to honor that request notwithstanding the fact that it might have also been obtained elsewhere. OAG 91-21 (recognizing that "there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency" ); see also 10-ORD-060.
Accordingly, we find that the Spencer County Fiscal Court subverted the intent of the Open Records Act, short of denial of inspection, by misdirecting Mr. Trageser to the Office of the Spencer County Clerk for a copy of the executive order relating to signs erected on the public right of way that was scheduled to take effect on September 1, 2014. However, a new county judge/executive and county attorney took office in 2015, and these policies may no longer apply. These newly elected officials may wish to review the fiscal court's past policies and revise or adopt them as they see fit.
Either party may appeal this decision 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 Mr. Trageser does not assert that the fiscal court's response was untimely. In the absence of a challenge to the timeliness of the response, or an explanation for the apparent discrepancy, we are not prepared to assign error.
2 The County Attorney stated that Mr. Trageser "made his request for an executive order to the Spencer County Judge/Executive's office who [sic] did not have a copy of the record." This is not accurate. Mr. Trageser's request was addressed to "Spencer County government" and delivered to the Spencer County Attorney Ruth Hollan.
3 See 14-ORD-030.
4 See 14-ORD-110.
5 KRS 61.876(1) requires all public agencies to:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
6 The KRS 61.876(1) posted rules and regulations for the Spencer County Clerk identified the County Clerk Lynn Hesselbrock as official custodian of her office's records.
7 KRS 117.035(3).
8 KRS 61.872(4) states, "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."