March 25, 1994
IN RE: Joseph R. Kirwan/Transportation Cabinet
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Joseph R. Kirwan to the Transportation Cabinet on February 7, 1994. Mr. Kirwan asked that he be permitted to inspect and copy "a map of the preferred route for the expansion/rebuilding of Highway U.S. 231 between Bowling Green and Scottsville, Kentucky." In a response dated March 4, 1994, Ms. Kim Garvin, Principal Assistant to the Custodian of Records for the Cabinet, advised Mr. Kirwan:
Under KRS 61.878(1)(2)(h) [sic] of the Open Records Law, OAG 86-32 states, 'A public agency's denial of a request to inspect documents is proper where the documents consist of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda including intra-office memoranda, and other documents not representing final action of the agency.' Therefore, your request is denied.
According to Mr. Kenneth Cox of our Bowling Green District Office, the information which you are requesting is still in the preliminary stages and has not yet been finalized. Therefore, we are unable to release copies of the requested material. You may however, contact Mr. Cox . . . to schedule an appointment and review the information[.]
Dissatisfied with Ms. Garvin's response, Mr. Kirwan submitted this appeal to the Attorney General.
In his letter of appeal to this Office, Mr. Kirwan challenges the Cabinet's invocation of KRS 61.878(1)(h), noting:
According to published news reports in the Bowling Green Daily News, and television and radio reports, the Transportation Cabinet has made public a report of its consultant as to the preferred route for the expansion/rebuilding of U.S. Highway 231 between Bowling Green and Scottsville, Kentucky. Since the Transportation Cabinet has determined that the report of their consultant is news and disseminated it to the various news media, it seems contradictory to refuse the right to make a copy of the map showing the preferred route.
Mr. Kirwan asks that we determine whether the Cabinet properly refused to permit him to copy a document which it offered to permit him to inspect. For the reasons set forth below we conclude that the Cabinet violated the Open Records Act by denying Mr. Kirwan's request for a copy.
KRS 61.874(1) and (2) provides:
(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall permit the applicant to duplicate the records; however, the custodian may ensure that such duplication will not damage or alter the records.
(2) The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual
cost not including the cost of staff required.
(Emphasis added.) It is abundantly clear from the language of this statute that one having inspected records is entitled to copies of them upon payment of a reasonable fee. That fee must not exceed the actual cost of copying, and may not include the cost of staff required. The right to copies of public records is thus correlative to the right to inspect those records. Accordingly, a public agency cannot on the one hand release public records for inspection by a requester, and on the other hand deny the requester the right to copy these records. See, e.g., OAG 89-27; OAG 89-43; OAG 89-66. The public records are either available for inspection and copying, or, under one or more of the exceptions codified at KRS 61.878(1)(a) through (k), they are not.
The Transportation Cabinet is directed to furnish Mr. Kirwan with a copy of the preferred route map for the expansion/rebuilding of Highway U.S. 231. Since Mr. Kirwan's place of business is apparently in the same county where the records are maintained, the Cabinet may require that he inspect the map in advance of furnishing him with a copy. The Cabinet cannot, however, avoid its duty to provide copies pursuant to KRS 61.874(1) and (2).
The Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be
named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Kim Garvin
to the Custodian of Records
Department of Administrative Services
903 State Office Building
501 High Street
Frankfort, KY 40622
Hon. Joseph R. Kirwan
Hixson, Downey & Travelsted
537 E. Tenth Street
Bowling Green, KY 42102-3250