Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Lawrence Trageser initiated this appeal by letter dated May 17, 2016, challenging the disposition by the Spencer County Clerk of his April 21, 2016, request for "any and all records reflecting the voter registration cards for the following individuals: Donald Stump, Sheriff Buddy Stump's father, Charlie Jewell and Chris Sullivan." By letter dated April 22, 2016, Spencer County Clerk Lynn Hesselbrock advised Mr. Trageser that records for Donald Stump and Chris Sullivan would be available Monday, April 25, 2016, (the third business day per KRS 61.880(1)) during regular business hours (per KRS 61.872(3)(a)). The County Clerk further explained that three different individuals with the name "Charlie Jewell" are registered in Spencer County and requested that Mr. Trageser identify the Charlie Jewell whose records he was requesting.
On appeal Mr. Trageser advised that he received the County Clerk's response on April 25, 2016, and called her on the morning of April 26, 2016, providing the location of the correct Charlie Jewell's residence and indicating that he is Buddy Stump's uncle; the County Clerk disputes Mr. Trageser's recollection of their conversation. The Attorney General has recognized that "this office is not equipped to resolve factual dispute[s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 09-ORD-120; 14-ORD-132. Accordingly, this office makes no finding on the accuracy of either party's account of the conversation or the other conflicting facts of record, particularly since the County Clerk's preexisting duty to make any voter registration records publicly accessible upon request is ultimately determinative. However, the undisputed facts establish that the County Clerk advised Mr. Trageser that he would have to provide the information regarding Charlie Jewell in writing; Mr. Trageser advised that he would simply inspect records for all three of the individuals named Charlie Jewell instead. When Mr. Trageser arrived in the County Clerk's office to pick up the records one day soon thereafter, he was provided with a sealed packet containing the records for Donald Stump and Chris Sullivan. A handwritten note was attached indicating that Mr. Trageser "[m]ust specify in writing which Charlie Jewell he wishes to inspect. There are 3 registered in the county."
On appeal Mr. Trageser emphasized the mandatory language of KRS 116.095, pursuant to which "[t]he county clerk shall permit any citizen, at all reasonable hours, to inspect or make copies of any registration record, without any fee." (Emphasis added.) KRS 116.095 further provides that the clerk "shall, upon request, furnish to any person a copy of the registration records, for which he may charge necessary duplicating costs not to exceed fifty cents ($ 0.50) per page." 1 (Emphasis added.) The County Clerk emphasized that Mr. Trageser did not "invoke KRS 116.095" during their April 26, 2016, telephone conversation or until he visited the office on or around May 18, 2016, to retrieve additional voter registration cards that he requested on April 29, 2016, and which the County Clerk notified him by letter dated April 30, 2016, would be made available for inspection and copying on May 3, 2016. Regardless of whether Mr. Trageser expressly cited KRS 116.095 in his April 21 request, or did so verbally during his telephone conversation with the County Clerk on April 26, 2016, KRS 116.095, the more specific provision implicated here, prevails over the more general provision(s) of the Open Records Act, upon which the County Clerk implicitly relied in support of her position that Mr. Trageser is required to comply with KRS 61.872 by providing a "specific, written request" before her office must provide him with access to voter registration records for all three individuals named Charlie Jewell.
Pursuant to KRS 61.872(2), "[a]ny 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." This provision dictates the procedure that must be followed in submitting requests made under the Open Records Act in the absence of a more specific provision. 2 However, when two statutes concern the same or similar subject matter, as in this case, the specific shall prevail over the general. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000); See 10-ORD-010 (KRS 61.880(1) only applies in the absence of any other applicable statutory deadline for agency response whereas KRS 197.025(7) is a specific provision establishing the deadline by which the Department of Corrections and facilities under its jurisdiction are required to respond to requests made under the Act); 14-ORD-068 (KRS 189.635(7) and the corresponding regulation prevail over KRS 61.874, a statute of general application) ; 03-ORD-222. In discharging our duty to "ascertain and give effect to the intent of the General Assembly," this office is "not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonable ascertainable from the language used." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). This office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth at 835. Likewise, this office "must construe all words and phrases according to the common and approved uses of language" per KRS 446.080(4); Withers v. University of Kentucky, Ky. 939 S.W.2d 340, 345 (1997).
Applying these governing principles on the facts presented, this office finds the specific and mandatory language of KRS 116.095 prevails over the rule of general application codified at KRS 61.872(2). See 03-ORD-034 (KRS 116.095 and 117.025(3)(h), statutes relating to "voter registration and related records," are unambiguous and KRS 116.095 imposes an "affirmative duty on county clerks" to provide any member of the public an opportunity to inspect "voter registration records containing the voter's name, date of birth, and address (but omitting social security number) . . . "). In light of this determination, the Spencer County Clerk should provide Mr. Trageser with an opportunity "to inspect or make copies of any registration record," including those for all three individuals named Charlie Jewell. 3 The County Clerk's disposition of Mr. Trageser's April 21, 2016, request otherwise complied with relevant provisions of the Open Records Act but is not legally supportable in this respect.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.
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