NOT TO BE PUBLISHED
August 16, 1993
IN RE: George J. McNulty/Office of the Powell County Clerk
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Powell County Clerk in responding to Mr. George J. McNulty's request for that Office's assistance in helping him ascertain the identities of persons to whom certain license plate numbers had been issued. He indicates that on July 14, 1993, he made his request to Ms. Sherry Bowen, Powell County Clerk, who directed him to "some paper records of registration receipts that were filed by the date of registration." Mr. McNulty then advised Ms. Bowen that he would "prefer that she have a deputy clerk help [him] find what [he] was seeking in one of the clerk's computer terminals."
At this point, Ms. Bowen informed Mr. McNulty that he should submit his request for information in writing, and that she would respond within seven days. Asked if this were "standard operating policy," Ms. Bowen responded that it was, although a written policy was not posted in her office. She explained that she was reluctant to release vehicle registration records without a written request because the information contained in those records might be improperly used by persons attempting to learn the type of personalty owned by Powell County residents.
We are asked to determine if the Powell County Clerk's actions in responding to Mr. McNulty's request constitute a violation of the Open Records Act. For the reasons set forth below, and assuming the facts to have been fairly and accurately presented by Mr. McNulty, we conclude that Ms. Bowen's actions were partially consistent and partially inconsistent with the Act.
We begin by noting that the Open Records Act provides that "[a]ll public records shall be open for inspection by any person" unless otherwise excluded from public inspection under one of the statutorily recognized exceptions. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. See [OAG] 76-375. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning of import of information shown upon records produced.
See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19. The public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to nonexempt records, and not to require the compilation of information. Mr. McNulty should bear these principles in mind in formulating his open records requests.
It should be noted that access to records, electronically stored, that can be retrieved by a computer is currently governed by a separate statute, the Public Access to Governmental Databases Act codified at KRS 61.960, et seq. Requests made under these provisions need not be honored if they are made for a commercial purpose. KRS 61.970(4); KRS 61.975(1). If the agency elects to honor them, it may impose a different fee structure than would be imposed if release of the records was sought for a noncommercial purpose. KRS 61.975. The rules governing access to electronically stored records thus represent a significant departure from the rules governing traditional open records requests. These rules should also be borne in mind by Mr. McNulty in formulating any subsequent requests.
Turning to the procedural issues raised in this appeal, we find that Ms. Bowen's actions were only partially consistent with the Open Records Act. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
Although a records custodian "may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected," KRS 61.872(2), he or she may not postpone his or her response for seven days, but must instead respond in writing within three business days. The only exceptions to this general rule are found at KRS 61.872(5), and do not appear to have any application here. Ms. Bowen thus erred in advising Mr. McNulty that she would respond in seven days. Contrary to Mr.
McNulty's apparent belief, however, she is not required to "immediately" produce records, but may take up to three days to issue a response and produce the records.
In the event that Ms. Bowen elected to deny all or any portion of Mr. McNulty's request, she would be required to cite a specific exception to the Open Records Act authorizing nondisclosure and briefly explain how that exception applied to the records withheld. KRS 61.880(1). Those exceptions are codified at KRS 61.878(1)(a) through (k). It is not sufficient under the Act to make a vague oral reference to the potential harm that might come from release of the records. Ms. Bowen should review the cited provisions to insure that future responses conform to the Open Records Act.
The final issue in this appeal relates to Ms. Bowen's apparent failure to post, in a prominent place, the rules and regulations governing access to the County Clerk's records. KRS 61.876 provides, in part:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
This Office has consistently recognized that the failure to post rules and regulations governing access to public records constitutes a violation of the Open Record Act. See e.g., OAG 78-340; 92-ORD-1567; 93-ORD-83. The Powell County Clerk should immediately review her policy relative to KRS 61.876 to insure conformity with the Open Records Act.
Mr. McNulty and the Powell County Clerk may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Sherry Bowen
Powell County Clerk's Office
P. O. Box 548
Stanton, KY 40380
Mr. George J. McNulty
MGM Security, Inc.
65 McDaniel Lane
London, KY 40741-9147
KRS 61.872(5) provides,
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so 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.