NOT TO BE PUBLISHED 

93-ORD-94

August 16, 1993

IN RE: George J. McNulty/Office of the Powell County Clerk

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Powell County Clerk in responding to Mr. George J. McNulty's request for that Office's assistance in helping him ascertain the identities of persons to whom certain license plate numbers had been issued. He indicates that on July 14, 1993, he made his request to Ms. Sherry Bowen, Powell County Clerk, who directed him to "some paper records of registration receipts that were filed by the date of registration." Mr. McNulty then advised Ms. Bowen that he would "prefer that she have a deputy clerk help [him] find what [he] was seeking in one of the clerk's computer terminals."

At this point, Ms. Bowen informed Mr. McNulty that he should submit his request for information in writing, and that she would respond within seven days. Asked if this were "standard operating policy," Ms. Bowen responded that it was, although a written policy was not posted in her office. She explained that she was reluctant to release vehicle registration records without a written request because the information contained in those records might be improperly used by persons attempting to learn the type of personalty owned by Powell County residents.

We are asked to determine if the Powell County Clerk's actions in responding to Mr. McNulty's request constitute a violation of the Open Records Act. For the reasons set forth below, and assuming the facts to have been fairly and accurately presented by Mr. McNulty, we conclude that Ms. Bowen's actions were partially consistent and partially inconsistent with the Act.

We begin by noting that the Open Records Act provides that "[a]ll public records shall be open for inspection by any person" unless otherwise excluded from public inspection under one of the statutorily recognized exceptions. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:

See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19. The public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to nonexempt records, and not to require the compilation of information. Mr. McNulty should bear these principles in mind in formulating his open records requests.

It should be noted that access to records, electronically stored, that can be retrieved by a computer is currently governed by a separate statute, the Public Access to Governmental Databases Act codified at KRS 61.960, et seq. Requests made under these provisions need not be honored if they are made for a commercial purpose. KRS 61.970(4); KRS 61.975(1). If the agency elects to honor them, it may impose a different fee structure than would be imposed if release of the records was sought for a noncommercial purpose. KRS 61.975. The rules governing access to electronically stored records thus represent a significant departure from the rules governing traditional open records requests. These rules should also be borne in mind by Mr. McNulty in formulating any subsequent requests.

Turning to the procedural issues raised in this appeal, we find that Ms. Bowen's actions were only partially consistent with the Open Records Act. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Although a records custodian "may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected," KRS 61.872(2), he or she may not postpone his or her response for seven days, but must instead respond in writing within three business days. The only exceptions to this general rule are found at KRS 61.872(5), and do not appear to have any application here. Ms. Bowen thus erred in advising Mr. McNulty that she would respond in seven days. Contrary to Mr.

McNulty's apparent belief, however, she is not required to "immediately" produce records, but may take up to three days to issue a response and produce the records.

In the event that Ms. Bowen elected to deny all or any portion of Mr. McNulty's request, she would be required to cite a specific exception to the Open Records Act authorizing nondisclosure and briefly explain how that exception applied to the records withheld. KRS 61.880(1). Those exceptions are codified at KRS 61.878(1)(a) through (k). It is not sufficient under the Act to make a vague oral reference to the potential harm that might come from release of the records. Ms. Bowen should review the cited provisions to insure that future responses conform to the Open Records Act.

The final issue in this appeal relates to Ms. Bowen's apparent failure to post, in a prominent place, the rules and regulations governing access to the County Clerk's records. KRS 61.876 provides, in part:

This Office has consistently recognized that the failure to post rules and regulations governing access to public records constitutes a violation of the Open Record Act. See e.g., OAG 78-340; 92-ORD-1567; 93-ORD-83. The Powell County Clerk should immediately review her policy relative to KRS 61.876 to insure conformity with the Open Records Act.

Mr. McNulty and the Powell County Clerk may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/1085

Distributed to:

Ms. Sherry Bowen

Powell County Clerk's Office

P. O. Box 548

Stanton, KY 40380

Mr. George J. McNulty

MGM Security, Inc.

65 McDaniel Lane

London, KY 40741-9147

KRS 61.872(5) provides,