April 9, 1996

In re: James M. Perry/Kenton County Clerk


This appeal originated in a request for records submitted by James M. Perry to the Kenton County Clerk. Those records were identified as “any and all unpaid tax bills from 77 til 87[;] any and all liens that were not paid, and the court cost” for a parcel of land located at 113 Pleasant Street, Covington, Kentucky. Mr. Perry, an inmate at Eastern Kentucky Correctional Complex, submitted his request on January 4, 1996, but did not receive a response. This appeal followed.

On March 13, this office notified the Kenton County Clerk, Bill Aylor, that an appeal had been filed in this matter. On his behalf, Kenton County Attorney Garry L. Edmondson responded to Mr. Perry's request. He advised:

The County Clerk has not denied the applicant the right to inspect the records in issue, same are available to him and any member of the public without charge every business day 8:30 AM to 4:00 PM.

KRS 61.872 merely provides that the records be open to the public, and they are. There is no requirement in the law that the County Clerk do a title search for the public upon demand. To do so would be a tremendous and impossible task and perhaps the practice of law without a license. Subsection (6) of that statute provides that if the request is unreasonable and burdensome the request may be denied.

It is beyond cavil that the General Assembly did not envision that the county clerks of the Commonwealth would have to do title searches for the public upon request.

Mr. Edmondson's response was addressed to this office, and it does not appear that he furnished Mr. Perry with a copy.

We are asked to determine if the Kenton County Clerk violated provisions of the Open Records Act in its handling of Mr. Perry's request. For the reasons set forth below, we conclude that the clerk's response, although procedurally deficient, was substantively correct.

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 agency action.

To the extent that the Kenton County Clerk failed to respond to Mr. Perry's request, in writing, and within three business days, the clerk violated KRS 61.880(1). Despite the procedural deficiency, our review of the substantive issues leads us to uphold the Kenton County Clerk's position.

Mr. Perry requested access to all unpaid tax bills from 1977 through 1987, all liens, and all “court costs” on property located at 113 Pleasant Street. Mr. Aylor responded that although Mr. Perry is entitled, like any other person, to inspect those records during regular office hours, he is not obligated to conduct research in order to locate those records. He argued that the Open Records Act does not obligate him to “do a title search for the public upon demand.” We concur.

Had Mr. Perry precisely described a specific record, and that record was readily available within his office, the County Clerk would be obligated to conduct a search for that document, and, upon payment of the costs associated with reproduction and mailing, send a copy to Mr. Perry. His request was not, however, specific enough to permit the custodian to determine what records it encompassed, and therefore necessitated nonobligatory research. Mr. Aylor properly declined to conduct this research for Mr. Perry, as he would decline to conduct such research for any other requester. Compare, 95-ORD-27. His response, although procedurally deficient, was in all material respects consistent with the Open Records Act. We therefore find that, with the exception of the procedural violations noted, the Kenton County Clerk properly denied Mr. Perry's request.

A party aggrieved by this decision may appeal it 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 proceeding.






Distributed to:

Hon. Garry L. Edmondson

Kenton County Attorney

Room 307

303 Court Street

Covington KY 41011

James M. Perry #116582

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty KY 41472

Bill Aylor

Kenton County Clerk

P. O. Box 1109

Covington KY 41012