25-ORD-124
May 15, 2025
In re: Bobby Ellison/City of London
Summary: The City of London (“the City”) did not violate the Open
Records Act (“the Act”) when it did not provide a copy of a record to a
county resident prior to his inspection of the record under
KRS 61.872(2)(a) and KRS 61.874(1).
Open Records Decision
Bobby Ellison (“Appellant”) submitted a three-part request to the City for three
categories of law enforcement records. In response, the City stated that because the
Appellant is a resident of the Laurel County, it was electing to require him to inspect
the records in person before receiving copies. This appeal followed.
Under KRS 61.872(2)(a), “[a]ny resident of the Commonwealth shall have the
right to inspect public records.” Inspection of public records on the agency’s premises
is the basic right provided by the Act. “Upon inspection, the applicant shall have the
right . . . to obtain copies of all public records not exempted by the terms of
KRS 61.878.” KRS 61.874(1) (emphasis added). Thus, under KRS 61.874(1), a
requester’s right to obtain copies of records is conditioned on his prior inspection of
those records. See, e.g., OAG 76-375 (finding that “[t]he right to have copies of records
is ancillary to the right of inspection and does not stand by itself,” and therefore “[i]f
a person has not inspected the records he desires to copy[,] there is no requirement
that copies of any records must be delivered to him”); OAG 82-629 (finding that the
Act “does not contemplate that a public agency shall send requested records to a
person who has not inspected them”).
In 1992, the General Assembly enacted KRS 61.872(3), which provides that
public records may be inspected either “[d]uring the regular office hours of the public
agency” or “[b]y receiving copies of the public records from the public agency throughthe mail.” The second alternative, however, is not available to all requesters. Rather,
“[t]he 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 or she precisely describes the public records which are readily
available within the public agency.” KRS 61.872(3)(b) (emphasis added). Thus, a
person who does not live or work outside the county where the records are located is
not entitled to receive copies without having first inspected the records in person at
the facility provided by the agency. See Commonwealth v. Chestnut, 250 S.W.3d 655,
661 (Ky. 2008) (finding that “KRS 61.872(3)(b) seemingly applies when someone
residing outside the county in which the public records are located desires to receive
copies of the public records through the mail,” not a person “in the same county as
the records kept by the custodian”); see also 97- ORD-46 (finding that “[a] requester
who both lives and works in the same county where the public records are located
may be required to inspect the records prior to receiving copies”); 92-ORD-1620
(finding that KRS 61.872(3)(b) “reflects a concern that persons residing outside the
county where the records are maintained should not be compelled to travel great
distances in order to inspect those records”).
The City asserts that the Appellant resides or has his principal place of
business within Laurel County, where the record is located. In response, the
Appellant asserts that he no longer resides in Laurel County. However, the relevant
question before the Office is not where the Appellant currently resides. Rather, the
Act is concerned with the Appellant’s residence at the time he submitted his request.
See, e.g., 25-ORD-018 (finding the requester was not a resident of the Commonwealth
at the time of the request). Here, the Appellant’s original request lists a zip code that
is located within Laurel County. Therefore, because the Appellant represented that
he resided in Laurel County in his request, the Office concludes that he resided within
Laurel County at the time of his request. As such, the Appellant’s right to obtain a
copy of the record is merely incidental to his right under KRS 61.874(1); i.e., the right
to obtain a copy “[u]pon inspection.” Accordingly, the City did not violate the Act when
it made the requested record available for the Appellant’s inspection during its
regular business hours, as opposed to sending him copies of the records.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#164
Distributed to:
Bobby Ellison
Katelin McPeek, London City Clerk
Larry G. Bryson, London City Attorney
Randall Weddle, Mayor, City of London