NOT TO BE PUBLISHED 

93-ORD-48

April 22, 1993

IN RE: Karl Idsvoog/Office of the Kenton County Attorney

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Office of the Kentucky County Attorney relative to Mr. Karl Idsvoog's April 2, 1993, request to inspect certain financial records in the County Attorney's custody. Mr. Idsvoog is the Special Projects Producer for WCPO-TV in Cincinnati, Ohio, and his request was made under the Kentucky Open Records Law.

On April 6, 1993, Mr. John R. Elfers, Kenton County Attorney, responded to Mr. Idsvoog's request, advising him that the records would be made available to him during the week of April 12, 1993, in Mr. Elfers' office. He directed Mr. Idsvoog to contact Ms. Tara McKinley, Office Supervisor in the Kenton County Domestic Relations/Child Support Division, during the week of April 12 to schedule an appointment.

Ms. McKinley subsequently advised Mr. Idsvoog that Mr. Elfers had instructed her to explain to him that he would be permitted to inspect the requested records only when she was available to oversee his review. On April 13, the date scheduled for inspection, Ms. McKinley was only available to monitor his inspection of the records for 45 minutes.

In his letter of appeal to this Office, Mr. Idsvoog acknowledges that he has not been denied access to the records,

but argues that the County Attorney's Office has placed "restrictions on access that make it difficult to inspect the records." It is his position that the Open Records Law does not require that a staff member oversee inspection of public records, and that by restricting his right of access to those times when a staff member is available the County Attorney has violated the law. Mr. Idsvoog urges this Office to issue a decision consistent with these views.

We are asked to determine if the Office of the Kenton County Attorney subverted the intent of the Open Records Law short of denial of inspection by imposing unreasonable restrictions on Mr. Idsvoog's right of access to the requested records. For the reasons set forth below, and assuming the facts of this case to have been fairly and accurately presented, we conclude that the County Attorney subverted the law in contravention of KRS 61.872.

KRS 61.872(3)(a) provides that a person may inspect public records during the regular office hours of the public agency. This Office has consistently recognized that any attempt by a public agency to limit the period of time within which a requester may inspect public records places "an unreasonable and illegal restriction" upon the requester's right of access. OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39. If, in fact, Mr. Elfers requires as a precondition to the right of inspection the presence of an employee of his office, and that employee is not available to oversee the review of documents during all regular office hours, he has in effect restricted access to public records in contravention of KRS 61.872(3)(a).

KRS 61.876(1) requires a public agency to adopt rules and regulations "in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, [and] to prevent excessive disruption of its essential functions . . . ." While this provision does not expressly permit a public agency to appoint an employee to oversee the review of its records, we believe that such a policy is consistent with the agency's grant of authority to protect its records and prevent excessive disruption of its essential functions. Nevertheless, we do not believe that the policy can be used to limit the number of hours during the regular work day when a requester may inspect records. Nor do we believe that the employee designated to oversee the requester's review may interfere or disrupt his or her inspection of the records.

See, e.g., 93-ORD-39 (holding that a city manager's abusive conduct directed at requester while he was reviewing records created a hostile atmosphere which rendered the facilities provided by the city unsuitable for inspection).

We therefore conclude that although the Kenton County Attorney may require the presence of an employee to oversee inspection of his Office's records, he cannot abuse the policy such that the requester's right of access is unduly restricted in contravention of KRS 61.872(3)(a). Mr. Elfers is directed to permit Mr. Idsvoog to inspect the requested records immediately and continuously until his review is completed.

The Office of the Kenton County Attorney may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/565

Distributed to:

Hon. John R. Elfers

Office of the Kenton County Attorney

Room 304, City County Building

Covington, KY 41011

Mr. Karl Idsvoog

Special Projects Producer

WCPO-TV

500 Central Avenue

Cincinnati, Ohio 45202