March 17, 1997

In re: Donny R. Owens/Olive Hill City Clerk

Open Records Decision

This matter comes to the Attorney General on appeal from the Olive Hill City Clerk's denial of Mr. Donny R. Owens's open records request to inspect building permits issued by the City of Olive Hill since May of 1995. The City Clerk denied Mr. Owens's request on the basis that it would be a conflict of interest in that Mr. Owens operates an insurance agency and some of the permits could include copies of insurance from other companies.

On February 18, 1997, we sent a “Notification of Receipt of Open Records Appeal” to Mr. Don Everman, Olive Hill City Clerk, and enclosed a copy of Mr. Owens's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Everman provided this office with a response to the letter of appeal.

In his response, Mr. Everman states:

In response to the appeal on the open records request, I feel the following examples apply for exemption from the open records law.

1. Records containing personal information, the disclosure of which would constitute an unwarranted invasion of privacy.

2. Records confidentially disclosed to an agency by an entity whose competitors would gain an unfair commercial advantage if the records were openly disclosed.

3. Records pertaining to a prospective location of a business where no public disclosure has been made of the business's intention to move.

4. Blanket request for information or for the preparation of lists not already in existence.

We are asked to determine whether the responses of the city clerk was consistent with the Open Records Act. For the reasons which follow, we conclude that the responses were both procedurally and substantively inconsistent with the Act.

We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. The clerk's initial response was procedurally deficient in that he failed to respond to Mr. Owens's request in writing.

Moreover, in Edmondson v Alig, Ky. App., 926 S.W.2d 856, 858, (1996), the Court of Appeals, in discussing these response requirements of KRS 61.880(1), stated:

The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.

A public agency has the burden of justifying the withholding of a record by reference to the appropriate statutory exception relied upon and by briefly explaining how that exception applies to the particular document withheld. KRS 61.880(1). These procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of a request to inspect public documents.

In the instant case, the public agency failed to meet these requirements either in its initial response or in its response to the letter of appeal. Although the subsequent response lists examples of how certain exemptions may apply to the records withheld, it fails to reference the specific statute relied upon for withholding the records or give a brief explanation as to how the cited statutory exemption applies to those records. Here too, the responses are procedurally deficient and inconsistent with provisions of the Open Records Act.

As to the substantive issue, this office, in OAG 89-40, held that building permits are open to public inspection. In his letter of appeal, Mr. Owens indicates the clerk denied his request citing a conflict of interest in that he operated an insurance agency and some of the permits could include copies of insurance from other companies. Here, again, the agency does not set forth a statutory exemption under the Open Records Act that authorizes the withholding of the records because of a “conflict of interest” and how such exemption applies to the records withheld. Thus, the agency has not met its burden of proof of sustaining its blanket denial of the request to inspect the building permits. KRS 61.880(2)(c).

If a permit contains information which is exempt under the Open Records Act, KRS 61.878(4) provides:

If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for inspection.

Thus, if a building permit contains information that is exempt from disclosure, that portion should be redacted and the remainder disclosed for inspection. However, in withholding from disclosure or masking any portion of a public record, the agency must cite the appropriate statute authorizing such action and briefly describe how the cited exemption applies to the redacted portion.

It is important to note, however, that the limited exceptions to the general rule of disclosure must be enforced uniformly, or not at all. In other words, a public agency may elect to enforce these exemptions by masking the excepted information and releasing the nonexcepted information, but must do so with an even hand. The Open Records Act requires an agency to adopt a uniform policy. If one person is allowed to inspect a record, all should be allowed to inspect it. OAG 92-30. “It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement.” OAG 82-394, at p. 3.

Accordingly, the building permits should be made available for Mr. Owens's inspection. If inspection of any record or a portion of any record is denied, the denial must conform with the requirements of KRS 61.880(1).

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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Donny R. Owens

P. O. Box 581

Olive Hill KY 41164

Don Everman

Olive Hill City Clerk

Municipal Building

Main Street

Olive Hill KY 41164