Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Gallatin County Planning and Zoning Commission 1 ("Commission") violated the Open Records Act, specifically KRS 61.872(3)(a), in its disposition of Michael Murphy's request to inspect records of the Commission. For the reasons stated below, we find that the Commission violated the Open Records Act by requiring the requester to call the Commission Director prior to arriving for inspection of records during regular business hours.
By letter to the Commission, dated February 19, 2019, Michael Murphy ("Appellant") requested to inspect the following records:
1. Gallatin County Planning Commission bylaws;
2. Comprehensive Plan (Current Plan);
3. All document[s] pertaining to the Glencoe Revised Zone Map as of September 15, 2013, to include, but not limited to any minutes of the Planning Commission meetings and public hearing minutes
Jim Hansen, Commission Director, responded on February 20, 2019, stating that "I will begin researching the information requested and get back with you once that research is complete." On February 25, 2019, Stephen P. Huddleston, attorney, responded more fully on behalf of the Commission. 2 In response to the request to inspect by-laws, the Commission stated that KRS Chapters 100 and 153, Gallatin County Code of Ordinances, provide detailed guidance as to the internal functioning of the County Planning Commission and Board of Adjustment and serve the function of by-laws. The Commission further stated:
You may inspect and/or copy the zoning ordinance (if you don't already have one) by coming to the office of the Gallatin County Judge/Executive anytime during working hours. Copies of Kentucky Revised Statutes, while not maintained by the Zoning Commission, may be obtained in various ways, one of which is the County Law Library maintained at the Gallatin County Courthouse.
Regarding the request to inspect the Gallatin County Comprehensive Plan, the Commission stated that it is available at the office of the Gallatin County Judge/Executive. With respect to Appellant's request to inspect all documents regarding the Glencoe Revised Zone Map, the Commission stated that Appellant "may inspect and copy all records held by the Gallatin County Planning Commission relative to the City of Glencoe zone map at the office of the Gallatin County Judge/Executive." The Commission concluded its response by stating:
Actually, you are welcome to inspect and copy all public records held by the Gallatin County Planning Commission pertaining to any subject whatever at any time during normal business hours. An Open Records Request is unnecessary for that purpose. Please call Mr. Hansen before arriving for that purpose. You will be assessed the established per copy charge for all copies made.
Appellant's letter of appeal stated that he went to the office of the Gallatin County Judge/Executive on March 4, but was informed by an employee there that Mr. Hansen was not working that day, and that she had no knowledge of where the records were maintained. The appeal asserts that the Commission's responses violated KRS 61.872(5). 3 Appellant further asserts that he is not required to make an appointment to inspect public records and that he has been denied the opportunity to inspect the requested records as the Commission did not state when the requested records would be available.
On appeal, the Commission stated that it had not denied Appellant access to the records, but had merely asked that he contact Mr. Hansen in advance of his inspection. The Commission stated that Appellant came to the County Judge/Executive's office on March 4, even though he had called just prior to his visit and had been informed of Mr. Hansen's unavailability.
Analysis . KRS 61.872(3)(a) 4 contemplates access to public records by on-site inspection during regular office hours rather than requesting copies by mail as allowed by KRS 872(3)(b). 5 In the instant case, the Commission timely notified Appellant within the three day period allowed by KRS 61.880(1) that he could see the requested records "at any time during normal business hours. ? Please call Mr. Hansen before arriving for that purpose." Pursuant to KRS 61.872(3)(a), Appellant was entitled to immediately inspect the requested records during regular office hours once the Commission notified him in writing that the records were open for review. However, by requiring Appellant to call Mr. Hansen before arriving to inspect the records, the Commission in effect restricted access to public records, in contravention of KRS 61.872(3)(a), by not making the records available at any time during normal office hours. In 93-ORD-48, this office stated:
KRS 61.872(3)(a) provides that a person may inspect public records during the regular office hours of the public agency. This Office has consistently recognized that any attempt by a public agency to limit the period of time within which a requester may inspect public records places "an unreasonable and illegal restriction" upon the requester's right of access. OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39. If, in fact, [the agency] requires as a precondition to the right of inspection the presence of an employee of his office, and that employee is not available to oversee the review of documents during all regular office hours, [it] has in effect restricted access to public records in contravention of KRS 61.872(3)(a).
The record of this appeal indicates that the Commission requires Appellant to call Mr. Hansen before appearing during regular business hours to inspect the requested records and that Mr. Hansen must be present to facilitate that inspection. For this reason, we conclude the Commission violated the Open Records Act. In circumstances where there are limited employees or irregular office hours, the Open Records Act contemplates that the public agency and the requester mutually agree to a time and place convenient to both for review of the public records. 96-ORD-54. In this appeal, the Commission has not stated that it has "limited employees or irregular office hours" and so we cannot consider whether those conditions apply. The Commission must immediately make arrangements for Appellant to inspect the requested records.
We conclude that the relevant issue in this appeal falls under KRS 61.872(3)(a), and therefore Appellant's complaint regarding KRS 61.872(5) is inapplicable and need not be reviewed.
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.
Footnotes
Footnotes
1 From the response of the Gallatin County Planning and Zoning Commission, we take that as being the full title of the Commission, but it is also referred to by the parties as "Gallatin County Planning Commission," or the "Planning Commission."
2 We note that this response was on the third day after receipt of the request and the Commission was thus in compliance with the requirement of KRS 61.880(1) to notify the requester within three "business" days of whether it would comply with the request.
3 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
4 KRS 61.872(3)(a) states: "A person may inspect the public records: (a) During the regular office hours of the public agency[.]"
5 KRS 61.872(3)(b) states that a person may also inspect public records:
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.