NOT TO BE PUBLISHED
June 8, 1995
In re: Kevin Wilkins/Jefferson County Clerk
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Jefferson County Clerk's response to Mr. Wilkins's request for the owner's name of a Kentucky automobile license plate from the Motor Vehicle Records Department files of the county clerk's office.
In his letter of appeal, Mr. Wilkins indicates he filled out a "Request for Public Records" form of the Jefferson County Clerk's Office, in which he requested that the following information be provided to him from the Motor Vehicle Records Department of the Clerk's Office: "The owners name of Ky Plate TE7-314." The form has a line requiring "PHOTO ID."
In his letter of appeal, Mr. Wilkins states that he was required to show a photo identification. Enclosed with his letter of appeal is the "Request for Public Records" form which Mr. Wilkins filled out and submitted to the clerk's office. At the bottom is a handwritten notation, presumably by Mr. Wilkins, which states: "Carolyn Mavney refused."
On April 3, 1995, this office sent a "Notification of Extension of Time for Issuance of Attorney General's Decision in Open Records Appeal" to Mr. Wilkins and the Jefferson County Clerk. A copy of Mr. Wilkins's appeal was attached to the notification.
The clerk's office did not forward any response or additional documentation relative to Mr. Wilkins's appeal.
40 KAR 1:030, the administrative regulation which sets forth the procedures to be used by the parties in an open records appeal before the Attorney General, provides at Section 2:
Notice. Upon receiving a complaint, the Attorney General's Office shall send notice to the public agency that a complaint has been filed and a copy of the complaint. The agency may provide the Attorney General with a written response to the issues raised in the complaint. The agency shall send a copy of this response to the complaining party taking the appeal. If the agency fails to provide such copy, the Attorney General shall provide one upon request. The Attorney General shall consider any response received before the decision is prepared; however, the Attorney General shall not agree to withhold action on the complaint beyond the time limit imposed by KRS 61.846(2) and 61.880(2).
Since no response has been provided by the clerk's office, we must address this appeal on the basis of documentation supplied by Mr. Wilkins.
The question presented in this appeal is whether the Jefferson County Clerk's Office violated the Open Records Act in responding to Mr. Wilkins's request.
From the facts provided by Mr. Wilkins, it appears that he is challenging the county clerk's procedural requirement that he present a photo I.D. before he would be given the requested information from the Motor Vehicle Records Department file.
To the extent this is an accurate assumption by us of the facts, the clerk's office's response was procedurally deficient. Mr. Wilkins apparently was refused access to the information requested for failure to provide a photo I.D. and failure to follow the clerk's required procedures.
As we stated in 95-ORD-33, which we adopt and incorporate herein by reference, a person requesting public records is not required to state why he wishes to inspect the records or to produce a photo I.D. in order to see the records under the Open Records Act.
Under KRS 61.880(1), if the public agency is not going to allow the person access to the requested records, it is required to notify him in writing within three working days, stating the specific exception listed in KRS 61.878(1) which authorizes the withholding of the record and a brief explanation of how the exception applies to the record withheld. From the facts supplied us, the county clerk's office did not comply with this statutory requirement.
In order to comply with the requirements of the Act, the county clerk's office is directed to respond within three days to Mr. Wilkins's request in one of two ways: (1) by providing Mr. Wilkins with access to the requested information; or (2) by providing Mr. Wilkins with a written statement of the specific statutory exception authorizing the withholding of the requested record and a brief explanation of how the exception applies to the records withheld.
In addition, in his letter of appeal, Mr. Wilkins asks whether the county clerk's open records response to request involved in 95-ORD-33 or a subsequent request made on March 17, 1995, met the standard for the $25 per day penalty.
The answer to this question is no. KRS 61.882(5) provides:
Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were wilfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation.
In order for an individual to be eligible for such an award, he must bring an action in the circuit court where the public agency has its principle place of business or the county where the public record is maintained alleging a violation of the Open Records Act. KRS 61.882. Should the individual prevail against the agency, he would be awarded costs, including attorney fees, incurred in connection with the legal action. If he prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, the court may, if it so decides, award the person an amount not to exceed twenty-five dollars for each day he was denied the right to inspect or copy the public record. KRS 61.882(5).
Thus, to meet the standard for the twenty-five dollars a day penalty, an individual must file an action in circuit court pursuant to KRS 61.882. He may be eligible for the twenty-five dollar a day award should you prevail and the court, in its discretion, decides that he is entitled to that amount.
The Open Records Act does not provide for a monetary award from an appeal to the Attorney General to review a public agency's denial of a request to inspect a public record pursuant to KRS 61.880.
Mr. Wilkins or the Jefferson County Clerk may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Jefferson County Clerk
527 West Jefferson Street
Louisville, KY 40202
975 Locust Grove Road
Shelbyville, KY 40065