TO BE PUBLISHED
95-ORD-52
April 5, 1995
In re: Davy Jones/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Mr. Davy Jones, a professor of toxicology at the University of Kentucky. The facts which give rise to this appeal are summarized below.
On January 11, 1994, Mr. Jones submitted his request for records to the University's official custodian, Mr. Donald B. Clapp. [1]
Those records were identified as:
a. [T]he record constituting the president's OFFICIAL ACTION to recommend to the Board of Trustees that Joseph M. Hayse not be promoted/tenured.
b. [T]he regulation UTILIZED and RELIED UPON by the president as the BASIS for AUTHORIZATION of his performance of his OFFICIAL ACTION to transmit to the Board a recommendation against the promotion/tenure of Joseph M. Hayse.
c. [T]he Board of Trustees "regulation" on "government" of the University, statutorily authorized by KRS 164.200, that delegates authority to the university president to promulgate the particular administrative regulation identified in item 6b, and that provided the framework for administrative implementation of the "regulations" on "governance" issued by the Board on the matter of the official action described in 6a.
(Emphasis in original.)
Mr. Clapp responded on January 14, 1994, advising Mr. Jones as follows:
Please refer to Item H of the Board of Trustees minutes dated August 17, 1993 and the injunction of the Franklin Circuit Court attached thereto for the records responsive to your requests. Please be advised that when the Board of Trustees took action on the Joseph M. Hayse case it was pursuant to the terms of the referenced injunction. As previously advised, the Board of Trustees meeting minutes are generally available to the public for inspection in the Special Collections Department of the Archives, King Library North, first floor.
Mr. Clapp did not elaborate.
In his ponderous letter of appeal, Mr. Jones argues that the custodian's response constituted three independent violations of the Open Records Act. In our view, the response, although clearly deficient, raises only one appealable issue: Whether a public agency is obligated to physically retrieve and make available for inspection and copying specifically identified records which are housed in a separate location. For the reasons set forth below, we conclude that a public agency must retrieve the records in order to make them available for inspection and copying, and that the University's attempt to satisfy the Open Records Act by directing Mr. Jones to the King Library constituted a violation of the Act.
KRS 61.872 establishes guidelines for inspection of public records under the Open Records Act. That statute provides:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily avilable within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(4) If the person to whom the application is directed does not have custody or control of the public records requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
(5) If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
(6) If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence. [2]
The statute thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. [3] It does not permit an agency whose records are widely disbursed to direct the requester to a separate location where he or she must expend his or her own energy to locate and retrieve the records.
The only exceptions to this general rule are found at KRS 61.872(4), (5), and (6). If the person who receives the request does not have "custody or control" [4] of the records, he or she is obligated to notify the requester, and furnish the name and address (location) of the actual custodian. If the record is "in active use, in storage or not otherwise available," [5] the custodian must immediately notify the requester and designate a place, time, and date for inspection within three days of receipt of the request. If further delay is necessary, the custodian must provide a detailed explanation of the cause of the delay, and designate the earliest possible date, time, and place on which the records will be available for inspection. If the request for records is an unreasonably burdensome one, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records. [6] The University having failed to cite any of these "exceptions" to the general rule of inspection or copying, it must retrieve the public records [7] from the library and make them available for inspection and copying, or, if Mr. Jones consents to the arrangement, [8] retrieve the records, and mail copies to him. It is incumbent on the University to secure specifically described [9] public records which are reposited at other locations on the campus. It cannot avoid this requirement by directing the requester to conduct his own search at that location.
There are, of course, common sense limitations on the principles articulated above. A requester cannot, for example, reasonably expect the University to retrieve and produce for inspection a copyrighted work or works from the massive collection housed in the King Library. In our view, while those records may technically be "public records," since they are "retained by a public agency," their disclosure would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act. And, as noted, there may certainly be a point at which the request becomes unreasonably burdensome. However, where the records are specifically described public records, i.e., records which are "prepared, owned, used, in the possession of or retained by a public agency," per KRS 61.870(2), and which are kept in the library, the University is obligated to discharge its duties under KRS 61.872(1), (2), and (3).
The University and Mr. Jones may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
ABM/res/691
Distributed to:
Mr. George DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Mr. Davy Jones
204 Funkhauser Bldg.
University of Kentucky
Lexington, KY 40506
[1]Mr. George DeBin assumed the duties of records custodian at the University in July, 1994.
[2]KRS 61.872 underwent minor revision in the 1994 General Assembly. Because the events which give rise to this appeal occurred prior to July, 1994, when these amendments took effect, we do not consider them here. However, a cursory review of the amendments discloses that they would not affect the outcome of this appeal.
[3]A requester residing in a county other than the county where the public records are located may assert a right to inspect prior to receiving copies of precisely described records. A requester residing in the same county where the public records are located may be required to inspect prior to receiving copies.
[4]Pursuant to KRS 61.870(3) which has been recodified as KRS 61.870(5), the official custodian of records is defined as the chief administrative officer or employee of a public agency "who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" (Emphasis added.) Thus, the fact that the requested records are not in the official custodian's personal custody does not relieve him or her of the duty to retrieve the records and make them available for inspection, copying, or both.
[5]Public agency records which are housed in a library are not, in our view, "in active use, in storage or not otherwise available" within the meaning of KRS 61.872(5), which is obviously aimed at records which are not immediately accessible. Although some effort is required to retrieve the records, the University cannot reasonably claim that they are "not . . . available."
[6]The University does not cite this provision in support of its action. We therefore have no reason to believe that retrieving the records which Mr. Jones seeks would impose an undue burden on the University. At what point retrieval of voluminous public records stored in a separate location might become unreasonably burdensome thus remains an open question.
[7]It is sufficient, in our view, to locate the originals of the records which satisfy Mr. Jones's request, and which are housed in the library, and make copies of those records available for his inspection. In other words, the University is not required to bring the originals of the public records to the facilities provided for inspection, but may take whatever steps are necessary to protect the records from damage or disorganization.KRS 61.876(1). This assumes, of course, that the copies are legible.
[8]As noted, Mr. Jones may assert the right to inspect prior to obtaining records per KRS 61.872(3)(a) and (b).
[9]At no point in his response did Mr. Clapp assert that he could not ascertain what records Mr. Jones wished to inspect because his request was ambiguous or vague.