NOT TO BE PUBLISHED
97-ORD-3
January 15, 1997
In re: Wallace Morgan/City of Mayfield
Open Records Decision
This appeal originated in a request for public records made by Wallace Morgan to the City of Mayfield. In two separate requests, Mr. Morgan requested copies of council proceedings for all of 1949, 1950, and 1996. Mr. Morgan sent this office a letter dated December 3, 1996, stating that he had not yet received a response to his open records requests. In that letter, he also stated that when he delivered his requests the city clerk informed him that this was a busy time of year, and that he would get the copies to him when he had time. [1]
In response to the Attorney General's notification of appeal, Mike Curry, the Mayfield City Clerk, sent this office a letter dated December 18, 1996. In his letter, Mr. Curry stated that after complying with repeated requests from Mr. Morgan, he informed him that in the future, he would provide Mr. Morgan with a secure room in which he could spend as much time as needed to view the council proceedings. In addition, Mr. Curry stated that he would no longer provide Mr. Morgan with copies of council proceedings and ordinances from entire years or decades. In closing, Mr. Curry stated that unless he is directed by this office to do otherwise, he will continue to provide Mr. Morgan with a secure room to view any public records he wishes to see, but will not “make copies of quantities of records based solely upon Mr. Morgan's written or verbal request.”
In his letter of appeal, Mr. Morgan asks that we review the City of Mayfield's denial of his request to determine if the city's actions were consistent with the Kentucky Open Records Act. For the reasons set forth below, we conclude that the City's response was procedurally deficient. With respect to the substantive issues raised in this appeal, we find that the City's response was only partially correct.
KRS 61.880(1) sets forth the procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although Mr. Curry responded orally to Mr. Morgan at the time the requests were made, as of the date of Mr. Morgan's appeal there had been no written response. We urge the City Clerk to review the cited provisions to insure that future responses to open records requests are in writing, are issued within three business days, and if all or any portion of the request is denied, include a statement of the specific statutory exception authorizing denial.
Turning to the substantive issue in this appeal, we find that the Mayfield City Clerk complied with the Open Records Act in requiring Mr. Morgan to review the requested documents during regular business hours at the office of the City Clerk prior to obtaining copies.
KRS 61.872(3)(a) and (b) establish guidelines for records access under the Open Records Act. That statute provides:
(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 available 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.
(Emphasis added.) 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. A requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. Because he lives in Mayfield, Mr. Morgan can clearly be required to view the requested records at the office of the City Clerk before obtaining copies. See, e.g., 95-ORD-52; 96-ORD-186; 96-ORD-139, with which these parties are familiar.
With respect to the clerk's refusal to provide copies of council proceedings and ordinances per Mr. Morgan's requests, once the records are reviewed by Mr. Morgan, we find that unless the City Clerk can make the assertion that the requests are unreasonably burdensome, he must provide copies of the requested records. KRS 61.872(6) provides:
(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.
We remind the City Clerk that a denial based on this provision must be sustained by clear and convincing evidence.
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
Amye L. Bensenhaver
Assistant Attorney General
1262
Distributed to:
Mike Curry
City Clerk
City of Mayfield
City Hall
Mayfield, Kentucky 42066
Wallace C. Morgan
917 South 10th Street
Mayfield, Kentucky 42066
[1] Mr. Morgan provided this office with copies of two separate open records requests to Mr. Curry, one dated October 31, 1996, and the other dated November 6, 1996. In his letter of appeal, Mr. Morgan stated that he delivered his requests to the City Clerk, but does not provide us with a date of delivery. Therefore, we are unable to determine when Mr. Wallace's requests were actually submitted.