NOT TO BE PUBLISHED
97-ORD-12
January 23, 1997
In re: Allen G. Breed/Cabinet for Public Protection and Regulation
Open Records Decision
This matter comes to the Attorney General on appeal from the Cabinet for Public Protection and Regulation's response to Associated Press correspondent Allen G. Breed's December 13, 1996, request “to inspect files for the underground storage fund . . . to put the names of contractors with each claim that has been submitted and/or approved.” Mr. Breed proposed that an attorney from the Cabinet monitor his inspection of the records to insure that he recorded the claim number and contractor name only, and that he did not record confidential information appearing on the records.
On December 19, 1996, Laura M. Douglas, Secretary of the Cabinet for Public Protection and Regulation, responded to Mr. Breed's request. Ms. Douglas indicated that the Cabinet did not object to providing him with all nonexempt information, but that the proposed review method was “not workable.” Continuing, she explained:
[I]t would be inappropriate, costly and unwieldy for the fund to devote hours of attorney time to sitting with you while you reviewed fund files in order to insure that you did not access exempt information. Furthermore, while the open records law does require the fund to provide certain public information to you, the statute does not give you the authority to prescribe the method by which the documents must be provided.
As an alternative, Ms. Douglas suggested that Mr. Breed submit a list of claim numbers that he wished to review from a list of claim numbers and names previously provided. She indicated that the Cabinet would then segregate these files, mask all excepted material, and make the remainder of the file available for inspection. In a subsequent letter to this office, Ms. Douglas reaffirmed that the Cabinet will permit Mr. Breed to review its files, but will not permit him to have “unfettered access to office files.”
We are asked to determine if the Cabinet for Public Protection and Regulation violated provisions of KRS 61.870 to 61.884 in its response to Mr. Breed's request. For the reasons set forth below, and upon the authorities cited, we conclude that although it demonstrated a laudable spirit of cooperation in attempting to reach an acceptable accommodation with Mr. Breed, the Cabinet erred in refusing to permit him to conduct an on-site inspection of the 1300 files which contain the information he seeks.
KRS 61.872(1) provides that “[a]ll 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.” Subsection (2) of that provision states that “[a]ny person shall have the right to inspect public records.” KRS 61.872(3)(a) and (b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. Finally, KRS 61.874(1) provides that “[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof. . . .”
In interpreting these provisions, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. [1] Thus, in OAG 76-375 we held that if an applicant cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he must be permitted to “make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . .” OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the applicant asserted the right “to inspect the . . . documents during the regular office hours of the department. . . .” OAG 81-198, p. 4. The Attorney General concluded that the applicant had “not made any demand on [the] agency which is beyond the scope of the Open Records Law.” Id.
Echoing these opinions, in 1990 we held that the Rowan County Clerk erred in denying a request for equally broad categories of information for a ten year period. Recognizing that the applicant had requested information, rather than to inspect reasonably identified records, this office nevertheless held that the clerk's response “should have stated that while Open Records provisions do not require a public agency to compile information [to conform to the parameters of a given request], records that might yield the information sought would be made available for inspection during normal office hours.” OAG 90-19, p. 3. In a similar vein, in 97-ORD-6 the Attorney General reaffirmed the principle that “public agencies are not required to compile information to satisfy . . . a request, . . . [but] agencies are required to make available for inspection, during normal office hours, records that might yield the information sought.” 97-ORD-6, p. 4 (emphasis added).
Mr. Breed asserts his right to inspect all 1300 files in order to extract the information he seeks. He rejects the Cabinet's proposal that he submit a list of claim numbers, and review the requested files after the excepted material has been removed. In his letter of appeal, Mr. Breed states that he is attempting to compile a comprehensive database of this information. Thus, presumably, he wishes to inspect all, and not a portion, of the 1300 files. As in OAG 81-198, Mr. Breed's request that he be permitted to exercise his right to inspect the files is not a “demand on [the] agency which is beyond the scope of the Open Records Law.” Contrary to the Cabinet's apparent belief, and subject to the provision that the agency may adopt rules and regulations in conformity with the Open Records Act to provide full access to public records, to protect public records from damage and disorganization, and to prevent excessive disruption of its essential functions, the decision whether to conduct an on-site inspection of the records rests with Mr. Breed. KRS 61.876(1). “Unreasonable restrictions upon inspection may not be imposed.” OAG 89-81, p. 4.
In closing, we note that the Cabinet for Public Protection and Regulation does not identify those portions of the files which are excluded from public inspection, or the statutory basis for such exclusion. The Cabinet does, however, acknowledge that the presence of some excepted material in the files does not relieve it of its obligation to provide access to all nonexcepted material. This position is consistent with KRS 61.878(4) which provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
If the files which Mr. Breed requests contain both excepted and nonexcepted material, the Cabinet may, at its election, separate the excepted and make the nonexcepted material available for examination, after articulating, in writing, the statutory basis for withholding that information per KRS 61.880(1). However, “[t]he alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records.” OAG 81-198, p. 4. Because the exemptions codified at KRS 61.878(1)(a) through (j) are permissive, and not mandatory, [2] the decision to remove excepted material “rests within the sound discretion of the public agency.” OAG 89-76, p. 3. Accordingly, the Cabinet may release the files in their entirety, or separate the excepted material and make only the nonexcepted material available for inspection. It cannot deny inspection, or place restrictions upon the exercise of the right to inspect. While we applaud the Cabinet's attempt to find an alternative production process which is, in its view, workable, we believe that the Open Records Act does, with limited exception, [3] give the applicant, in this case Mr. Breed, the authority to prescribe the method of records access.
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 KRS61.880(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
1502
Distributed to:
Allen G. Breed
Associated Press
P. O. Box 131
Pikeville KY 41501
Laura M. Douglas
Secretary
Public Protection and Regulation Cabinet
90 Airport Road
Frankfort KY 40601
[1] Prior to July, 1992, inspection of public records was a precondition to receipt of copies. Whatever the practical difficulties associated with inspection might be, public agencies could require applicants to come to their offices to conduct an onsite review of the records requested in advance of receiving copies. The 1992 amendments to the Open Records Act eliminated this requirement, except when the applicant resides, or has his principal place of business, in the county in which the public records are located. The legislature did not, however, eliminate the right of the applicant to assert his right to inspect public records before, or as an alternative to, obtaining copies. The relevant language in KRS 61.872(1) and (2), as well as KRS 61.874(1), was not altered. The Open Records Act underwent further refinement in 1994, but those amendments are not relevant to the present discussion.
[2] See, e.g., OAG 79-275, OAG 91-81, 94-ORD-91, 95-ORD-100.
[3] If the applicant resides or works in the county where the records are maintained, the public agency is not required to honor a request for copies until the applicant has inspected the records. In this case, the applicant can be required to inspect records, prior to receiving copies, even though he requested access to records by receiving copies.