March 21, 1995

In re: George J. McNulty/Laurel County Clerk


This appeal originated in a request to inspect public records submitted by Mr. George J. McNulty to the Laurel County Clerk on October 6, 1994. Mr. McNulty, President of MGM Collection Agency, Inc., requested that he be permitted fifteen minutes per week to review electronically stored data in the clerk's office, and that a clerk be assigned to assist him in his search. He acknowledged that his purpose is a commercial one, and agreed to enter into a contract with the clerk's office delineating the terms of inspection. Mr. McNulty did not specifically identify the types of records he wished to inspect. Mr. Dean Johnson, Laurel County Clerk, did not respond to the request in writing, but, according to Mr. McNulty, orally advised him that he would not be permitted access to electronically stored records.

In his letter of appeal, Mr. McNulty notes that since his request was denied, Mr. Johnson has implemented "stricter regulations," prohibiting access to electronically stored information by any person. He indicates that the Bell County Clerk has adopted a similar policy, restricting access to automated motor vehicle registration records and the voter registration books because they contain social security numbers. He poses a series of questions relating to these practices.

In our view, however, the narrow issue presented in this appeal is whether the Laurel County Clerk violated the Open Records Act in denying Mr. McNulty's request. [1] For the reasons set forth below, we conclude that although Mr. McNulty's request was deficient, to the extent that he failed to identify a specific record which he wished to inspect but instead submitted a "standing request" for records of the county clerk which are electronically stored, the Laurel County Clerk's policy relative to those electronically stored records or portions of records which are otherwise nonexempt violates the Act.

We begin by noting that neither Mr. McNulty nor the Laurel County Clerk complied with the procedural requirements of the Open Records Act in the exchange which precipitated this appeal. KRS 61.872(2) imposes certain obligations on a person who wishes to inspect public records, and permits the custodian to "require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." (Emphasis added.) In his October 6 request, Mr. McNulty failed to identify a specific record or records which he wished to inspect, but instead made a "standing request" for access to "electronically stored data." This request is deficient for two reasons. First, it does not describe with "sufficient specificity," or indeed with any specificity, the nature of the record sought. OAG 92-56, p. 3. This office has long recognized that:

[A]lthough the purpose and intent of the Open Records Act is to permit the "free and open examination of public records . . . ," this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81; OAG 91-58.

Second, and in a similar vein, Mr. McNulty's request is a "standing request," which is not proper under the law. In OAG 91-78, this office affirmed the actions of a public agency when it refused "to issue a blanket release of documents to be used by the [agency] in futuro." OAG 91-78, p.4. There, we noted that a "standing request" for all records compiled by the public agency may properly be denied on the grounds that it fails to reasonably identify the records sought. Id.

Assuming the accuracy of the facts presented, we find that the Laurel County Clerk's response to Mr. McNulty's request was also procedurally deficient. 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.

Mr. Johnson failed to issue a written response to the open records request, and to cite the specific exception authorizing his decision to deny Mr. McNulty access to the records of his office. Without a written record documenting the public agency's response, this office is severely handicapped in its disposition of an appeal. As we have frequently observed, "[T]he procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 94-ORD-128, p. 2. We urge the Laurel County Clerk to review the cited provision to insure that future responses conform to the Open Records Act.

Although, as noted, we have no written record upon which to base our conclusions, it is our understanding that the Laurel County Clerk did not deny Mr. McNulty's request on procedural grounds, but instead on the grounds that the information he sought is electronically stored and therefore not properly accessible. This position directly contravenes the legislative intent embodied in the recent amendments to the Open Records Act. Responding to the ever-expanding use of computerized information systems, the General Assembly established, once and for all, that requests for nonexempt public records must be honored regardless of whether they are maintained in an electronic or hardcopy format.

Prior to its amendment, persons seeking access to records in a standard hardcopy format proceeded under the Open Records Act. Electronically stored records were available, if at all, through the Public Access to Governmental Databases Act. In construing this Act, the Attorney General had ruled that a public agency could properly deny a request for records stored in an electronic database if those records were requested for a commercial purpose. See, e.g., OAG 91-116. The "commercial purpose" exception did not foreclose access to nonexempt records in hardcopy format, which agencies were required to release regardless of the requester's purpose. In amending the Act, the General Assembly eliminated this artificial dichotomy. This was no mean achievement. In an age of rapidly changing information systems planning and technology, Kentucky seized the initiative and further advanced the policies articulated in KRS 61.871.

It is the opinion of this office that the Laurel County Clerk improperly denied Mr. McNulty's request for access to electronically stored records. Records of the county clerk are, in general, public records. The county clerk is charged with the duty of recording and keeping permanent records of, inter alia, legal instruments, voter registration, and county licensing. Although portions of these records may properly be excluded from inspection by operation of one or more of the exceptions to public disclosure codified at KRS 61.878(1)(a) through (l), it is incumbent on the county clerk to make all nonexempt portions of these records available for inspection and copying, regardless of whether they are maintained in electronic or hardcopy format. KRS 61.878(4) provides:

If any public record contains material which is not excepted under [KRS 61.878(1)(a) through (l)], the public agency shall separate the excepted and make the nonexcepted material available for inspection.

Like any other custodian of public records, the Laurel County Clerk is bound by this provision.

It is important to note that the Laurel County Clerk is not required to designate an employee to assist Mr. McNulty in inspecting nonexempt records stored in an electronic format. As this office observed in OAG 89-81, at page 5:

Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced.

While it may behoove the county clerk to assign a deputy to oversee inspection, pursuant to KRS 61.876, to protect the records from damage and disorganization and prevent disruption of essentional functions, he is not obligated to do so.

Because Mr. McNulty did not identify, with any degree of specificity, the records which he wished to inspect, we are unable to comment on the applicability of any of the exceptions to any portion of the record or records withheld. Nor do we address his concerns relative to the Bell County Clerk's policies on access to motor vehicle registration records and voter registration lists. Inasmuch as Mr. McNulty did not submit a formal open records request and receive a written denial, this matter is not ripe for review. However, the principles articulated above apply with equal force to all county clerks whose records access policies run contrary to the spirit, as well as the letter, of the Open Records Act.

Mr. McNulty and the Laurel County Clerk may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.






Distributed to:

Mr. Dean Johnson

Laurel County Clerk

101 South Main Street

London, KY 40741

Mr. George J. McNulty

333 North Main, Suite A

London, KY 40741-1366


[1]We assume the truthfulness of Mr. McNulty's allegations relative to the Laurel County Clerk and the Bell County Clerk's records policies. Both clerks were notified by this office that an appeal had been filed by Mr. McNulty, and provided with a copy of his appeal ("Notification of Extension of Time for Issuance of Attorney General's Decision in Open Records Appeal," dated November 28, 1994), and neither elected to rebut his contentions, or otherwise respond.