Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kenton County Clerk violated the Open Records Act in denying Chris Henson's February 11, 2018, request for "a computer printout that lists the addresses and amount of sale for the houses that belong to the current owners." Mr. Henson provided the following list of names: 1) Brian Keith Price, Erlanger, Kentucky; 2) Brian Anthony Henson; and 3) Gregory Wayne Henson. He asked for "the addresses that the above listed persons own in Kenton County and the "printouts or copies to display the final sale price of their [properties]." By undated letter, Kenton County Clerk Gabrielle Summe advised that her office received Mr. Henson's request on February 16, 2018. Ms. Summe indicated that information such as that requested is available for public inspection and can be located in the "records rooms" in either the Covington office or the Independence office, the addresses for which Ms. Summe provided. Ms. Summe further advised "[t]here are public computers available for you to use." In the alternative, Ms. Summe referred Ms. Henson to a website, www.kcor.org, that "allows guest access (free access) to find the properties" belonging to the named individuals. 1 "This office can't perform this search for you," Ms. Summe concluded, "since it constitutes a legal title search and this office can't give any legal advice."
In addressing Mr. Henson's request for a listing of the sale of the houses for those individuals, the Clerk similarly advised the "sale price may be listed on the recorded deed or mortgage for the property listed for each individual but to find that information you will need to go to either the Covington office . . . or the Independence office. ? There are public computers available for you to use which are free of charge." Ms. Summe reiterated that information was available on the aforementioned website, that "allows [you] to search for deeds and mortgages but to view the documents, there is [a] fee involved in this search." Finally, Ms. Summe again observed that her office could not perform the search for the reasons previously stated.
Mr. Henson argued on appeal that the Clerk's response subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4); he further asserted that requiring him to conduct onsite inspection of the records prior to receiving the requested copies violated KRS 61.872(3)(b) as he "informed the custodian" that his principal place of business is located outside of Kenton County. However, the only address of record is Mr. Henson's residential address in Covington, Kentucky, which is located in Kenton County.
Upon receiving notification of Mr. Henson's appeal from this office, Kenton County Attorney Stacy H. Tapke elaborated upon the Clerk's position as follows:
KRS 61.872 provides the guidelines for accessing public records. As Ms. Summe noted in her response, Mr. Henson can freely avail himself of the Clerk's records at her office which are open for public inspection M-F during office hours. If Mr. Henson has access to the internet, he can also access the clerk's records online for free 24 hours a day/7 days a week.
Mr. Henson's request . . . would require the Clerk's Office to embark on a legal title search. . . . Given that the request does not precisely describe a document (i.e. deed book and page number) Ms. Summe is not required to research or "to make extraordinary efforts to identify, locate, and retrieve the record [] in order to copy and mail [it] to the [requestor]." See 97-ORD-46; 04-ORD-011.
Although he states that he works outside of Kenton County, he has not provided an address indicating where he works. The only address that he has ever provided is that of Covington, Kentucky, a location very close to the Kenton County Courthouse. Regardless, similar to the case decided by the Kentucky Attorney General in 04-ORD-011 . . . , Mr. Henson would need to precisely describe the items he is requesting if he seeks to receive documents by mail. . . . As previous Attorney General's [decisions] have held, there is no requirement under the law that a County Clerk perform a title search for the public.
Based upon the mandatory language of KRS 61.872(3), and prior decisions by the Attorney General applying that provision, this office affirms the disposition of Mr. Henson's request.
Resolution of this appeal turns on the application of KRS 61.872(3)(b), pursuant to which a person is entitled to inspect public records "[b]y receiving copies of the public records from the public agency through the mail. " However, "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" only after he " precisely describes the public records which are readily available within the public agency. . . ." KRS 61.872(3)(b)(Emphasis added). See 03-ORD-067; 14-ORD-198; 15-ORD-212. 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). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by onsite inspection, 2 KRS 61.872(3)(b) requires the requester to "precisely describe" the records that he wishes to access by receipt of copies by mail; this degree of precision applies whether the request asks for the records in hard copy or electronic format "as the difficulties associated with identifying and locating all responsive documents" are the same. 16-ORD-242, p. 5. A request must be "specific enough so that a public agency can identify and locate the records in question." 13-ORD-077, p. 3(quoting OAG 89-8). In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he/she describes in "definite, specific and unequivocal terms" the records he/she wishes to receive. Id. Mr. Henson has not done so here. See 08-ORD-147; 13-ORD-177.
The Open Records Act contemplates public 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; 09-ORD-106; 17-ORD-010. Thus, a requester that both lives and works in the same county where the public records are located, may be required to inspect 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." 03-ORD-067, p. 5; 04-ORD-011; 09-ORD-106. Even assuming that Mr. Henson is employed in a different county, the Clerk would still not be required to mail copies of the records to him because the records are not "precisely described" nor can the records be properly characterized as "readily available. " This final requirement "permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, public agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant." 99-ORD-63, p. 3; 11-ORD-007. The Attorney General has long recognized that "[public] agencies and employees are the servants of the people . . . , but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4; 99-ORD-63. If the records which the applicant requests to access by receipt of copies via mail "cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them." 99-ORD-63, pp. 3-4; 11-ORD-007. Rather, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. " 99-ORD-63, p. 4.
The unrefuted evidence of record establishes that Mr. Henson resides in Covington, Kentucky, a city in Kenton County; likewise, the records are located in Kenton County. Mr. Henson did not provide the Clerk with an employment address located within Kenton County in requesting the aforementioned listings. Therefore, Mr. Henson cannot satisfy the threshold requirement of KRS 61.872(3)(b), and the Clerk was permitted to require him to conduct onsite inspection of records potentially responsive to his request prior to furnishing copies. See 08-ORD-132; 09-ORD-106; 14-ORD-198; 17-ORD-010. Further, a request for information, 3 or a listing that does not already exist, such as that of Mr. Henson, certainly does not "precisely describe" the records being sought, even assuming that it satisfies KRS 61.872(2). Nevertheless, the Clerk agreed to provide him with access to existing records containing the requested information during normal office hours per KRS 61.872(3)(b) and, upon receipt of payment (in accordance with KRS 61.874), also provide him with copies if desired. Nothing else was required. See 12-ORD-128. "Had Mr. [Henson] precisely described a specific record, and that record was readily available within [her] office, the County Clerk would be obligated to conduct a search for that document, and, upon payment of the costs associated with reproduction and mailing, send a copy to Mr. [Henson]. 96-ORD-078, p. 2.
Mr. Henson's request was not, however, "specific enough to permit the custodian to determine what records it encompassed, and therefore necessitated nonobligatory research. [Ms. Summe] properly declined to conduct this research for Mr. [Henson], as [she] would decline to conduct such research for any other requester. ..." 96-ORD-078, p. 2. If the requester is unable to furnish a precise description, here the deed book and page number, "it is not incumbent on the clerk 'to make extraordinary efforts to identify, locate, and retrieve the record[] in order to copy and mail [it] to the [requester] .' [97-ORD-46, p. 3.] This is consistent with the principle that '[public] agencies and employees are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time,' OAG 76-375, p. 4, as well as the requirements of KRS 61.872(3)(b)." 03-ORD-067, pp. 5-6. The Clerk's disposition of Mr. Henson's request is affirmed.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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