TO BE PUBLISHED
95-ORD-77
May 18, 1995
In re: Elizabeth Carswell/Madison County Board of Education
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Elizabeth Carswell to the Madison County Board of Education. On March 1, 1995, Ms. Carswell requested copies of "the budget and monthly financial statement for the bus barn." In addition, she requested copies of "the budget, financial statement, and Site-Based Council Meeting Minutes for White Hall School for the '94-'95 school year to date." In a response dated March 8, 1995, Superintendent Shannon Johnson responded to Ms. Carswell's request, advising her that there is no bus barn budget or individual financial statement for this facility. With respect to her request for various records relating to White Hall Elementary School, Superintendent Johnson indicated that the records would be mailed to her by March 24, 1995. Citing OAG 68-291, he admonished Ms. Carswell, "Neither the interested person nor his representative has the right to reproduce the records of a district board of education by any photostatic means whatsoever." Ms. Carswell asks whether this Attorney General's opinion is still valid, and the Superintendent can dictate what she can and cannot do with the copies of records which she purchases.
The question presented in this appeal is whether the Madison County Board of Education properly relied on OAG 68-291 in advising Ms. Carswell that she could not reproduce public records released to her by the Board. For the reasons set forth below, we conclude that, to the extent that the opinion is inconsistent, the Open Records Act supersedes OAG 68-291, and that the Madison County Board of Education's reliance on that opinion to restrain Ms. Carswell from reproducing public records was misplaced.
KRS 61.874(1) provides:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. [1] When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
The right to copies of public records like the right to inspect public records, is well grounded in the law.
The only restrictions on secondary use of those copies in the Open Records Act are found at KRS 61.874(5). That statute provides:
It shall be unlawful for a person to obtain a copy of any part of a public record for a:
(a) Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (4)(b) of this section; or
(b) Commercial purpose, if the person uses or knowingly allows the use of the public record for a different commercial purpose; or
(c) Noncommercial purpose, if the person uses or knowingly allows the use of the public record for a commercial purpose. A newspaper, periodical, radio or television station shall not be held to have used or knowingly allowed the use of the public record for a commercial purpose merely because of its publication or broadcast, unless it has also given its express permission for that commercial use.
Only in the unlikely event that Superintendent Johnson could establish that Ms. Carswell's purpose in requesting copies of these records was a commercial one, and he required her to submit a certified statement of commercial purpose per KRS 61.874(4)(b), could he seek to limit her use of those records, and then only by petitioning the circuit court to impose penalties under KRS 61.874 if he learned that she was using them for a purpose other than that which she certified.
Although there are no open records decisions directly on point, in OAG 93-19 the Attorney General was asked whether the recipient of information contained in public records could be restrained by the public agency from disclosing that information to others. Citing OAG 79-275, we noted that because the exceptions codified at KRS 61.878(1)(a) through (l) "are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody," the Open Records Act does not prohibit an agency from releasing otherwise exempt records. OAG 93-19, p. 3, citing OAG 79-275, pp. 3-4. Taking this principle one step further, we concluded that even if the information contained in the public records was exempt from disclosure under KRS 61.878, the recipient of the records could release it to others without violating the Act. Thus, neither the public agency, nor someone asserting a privacy interest, could "prevent release of the information once it is in [the recipient's] hands." OAG 93-19, p. 3.
The authority upon which Superintendent Johnson relies, a 1968 Attorney General's opinion, was superseded by enactment of the Open Records Act in 1976. In OAG 68-291, the Attorney General devoted considerable attention to common law principles of records access, which, where inconsistent, have been supplanted by statute. At page 5 of OAG 68-291, this office observed:
[I]n view of the inherent duty of the custodian to safeguard and preserve public records, and in view of the authority for reasonable regulation announced in Courier-Journal & Louisville Times Co. v. Curtis, it is the opinion of this office that neither the interested person nor his representative has the right to reproduce the record by any photostatic means whatsoever the person chooses. Just as the right to inspect may be reasonably regulated so as not to interfere with the proper administration of the affairs of the agency, so any copying of a record is subject to reasonable precautions and safeguards as may be deemed necessary under the circumstances to insure, insofar as possible, that the record is preserved unaltered and undamaged in its original state. If a particular copy process involves a possibility of change and/or damage to the record, the interested person cannot be said to possess a right to utilize the process, for to do so would override the public interest in the safe preservation of the record.
By the same principle, neither an interested person nor his representative has the absolute right to take the original records of the board into a private room without the secretary or the secretary's representative being present.
The Open Records Act authorizes a public agency to adopt rules and regulations in conformity with the Act "to protect public records from damage and disorganization [and] to prevent excessive disruption of its essential functions . . . ." KRS 61.876(1). In addition, the Act provides:
If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records, however, the custodian shall ensure that such duplication will not damage or alter the original records.
KRS 61.874(1). To the extent that these statutes are consistent with the principles articulated in the excerpt from OAG 68-291 quoted above, those principles are still valid. However, nothing in the statutes, or OAG 68-291, permits an agency to restrict a person to whom records have been released from reproducing those records or sharing them with others. Accordingly, the Madison County Board of Education cannot restrain Ms. Carswell from reproducing the records with which she has been furnished.
The Madison County Board of Education may challenge this decision 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 proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/367
Distributed to:
Superintendent Shannon Johnson
Madison County School System
550 South Keeneland Drive
Richmond, KY 40475
Ms. Elizabeth Carswell
301 Jeremiah Drive
Richmond, KY 40475
[1]If the applicant resides, or has his principal place of business, outside the county in which the public records are located, he cannot be required to inspect the records as a precondition to receiving copies, unless he is unable to precisely describe them or they are not readily available within the agency. KRS 61.872(3)(b).