June 2, 1993






IN RE: Gerald T. Kemper/Owen County Fiscal Court




This matter comes to the Attorney General on appeal from the actions of the Owen County Fiscal Court relative to Mr. Gerald T. Kemper's April 29, 1993, request to inspect certain records in its custody. Those records are identified in Mr. Kemper's request as follows:


1. A copy of the agreement between Ky. DOT and Owen Fiscal Court relating to the purchase of land by Owen County for improvement of U.S. 127 South of Owenton.


2. A copy of the agreements between Owen Fiscal Court and any appraisers obtained by such court.


3. A copy of all appraisals provided under the contract above mentioned, and the amount invoiced paid thereunder.


4. Itemized list amounts paid to property owners for rights of way. Including name, amount paid in cash and any additional agreements. Include costs of additional agreements.


5. Total cost of project to Owen County, pursuant to contract with DOT.


In a letter dated May 4, 1993, Owen County Judge/Executive Horace D. West advised Mr. Kemper:


I do not have to look up the information for you. All I have to do is tell you where it can be located. I have already told [you]

that items 1-5 can be found in the County Clerk's Office in the court minutes.


Judge West thereafter referred Mr. Kemper to the Clerk's Office.


In his letter of appeal to this Office, Mr. Kemper argues that at a minimum Judge West should advise him where the records can be located in the minutes. In his view, "the open records law and its annotations do not uphold this response."


The single issue presented in this appeal is whether the Owen County Fiscal Court properly responded to Mr. Kemper's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Fiscal Court's response was proper only if it does not have custody or control of the records requested.


In OAG 90-71, a copy of which is attached, this Office held that if an agency has custody and control of public records it cannot withhold those records simply because they might more appropriately or more easily be obtained from another agency. At p. 2 of that opinion, we observed:


When the [agency] receives an application to inspect public records, and the [agency] has custody and control of the requested public records, the [agency] is required by the Open Records Act to notify the applicant in writing of its decision either to comply with the request or to deny the request. If the [agency] decides to deny access to the public records, the written notification to the applicant "shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). When the [agency] receives an application to inspect public records, but the [agency] does not have custody or control of the requested public records, then the [agency] "shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him." KRS 61.872(3).


Judge West referred Mr. Kemper to the county clerk. This was an appropriate response only if the Fiscal Court does not, in

fact, have custody or control over any of the public records requested.


While we concur with Judge West in his view that a public agency is not required to conduct research on behalf of a requester who has not specifically identified the records he wishes to inspect, we believe that where the records are identified and are within its custody or control, it must produce those records for inspection or cite one or more of the statutory exceptions authorizing nondisclosure. Judge West does not indicate whether the Owen County Fiscal Court has custody or control of the records identified in Mr. Kemper's request. If it does have custody or control of the records, the Fiscal Court should afford him access to them or advise him which exception or exceptions authorize nondisclosure. If it does not, the Fiscal Court's response is proper, and Mr. Kemper may resubmit his open records request to the County Clerk. The agency cannot avoid the requirements of the law by referring a requester to another agency.


The Owen County Fiscal Court and Mr. Kemper may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.














Distributed to:


Hon. Horace D. West

Owen County Judge Executive

Owen County Fiscal Court

P. O. Box 465

Owenton, KY 40359


Hon. Gerald T. Kemper

109 N. Thomas Street

Owenton, KY 40359