NOT TO BE PUBLISHED

97-ORD-16

January 30, 1997

In re: Roy Thomas Allinder / Henderson City-County Planning Commission

Open Records Decision

This appeal originated in a request for public records submitted by Roy Allinder to the Henderson City-County Planning Commission on December 23, 1996. Mr. Allinder's request was as follows:

1) A copy of the comment sheets for all major subdivisions and master plans submitted to your office in the for the [sic] Planning Commission meetings from January 1, 1996 to January 1997.

2) Copies of the actual plats or master plans that were submitted for the L.D.C. during the time frame listed in Item # 1.

3) Copies of the actual plats or master plans that were re-submitted for the Planning Commission meeting after the Land Development Committee meeting.

4) Copies of the minutes of the Planning Commission minutes [sic] for the time frame listed in Item #1.

On December 23, 1996, Kathy Ferrell, Assistant Planner for the Henderson City- County Planning Commission, responded to Mr. Allinder's request. In her response, Ms. Ferrell stated that “in regard to copies of comment sheets and Planning Commission minutes, we will make those records available to you to go through and we will be glad to make copies of anything you want for $.25 cents per page.” In addition, Ms. Ferrell informed Mr. Allinder that there are no extra copies of the two separate sets of plats or master plans he requested, but that he is free to view the original plats in their office. She explained to Mr. Allinder that the only plats that are kept by the Commission are approved at Planning Commission meetings and that all additional copies are distributed to the utilities and agencies involved.

In subsequent correspondence, Mr. Allinder informed Ms. Ferrell that he had no problem paying the $.25 cents per page copying charge for the comment sheets and minutes. He also stated that “copies of plats and or master plans made by a copier is [sic] satisfactory to us and we would still need a copy of the plats and/or master plans that are of record in your office.”

Ms. Ferrell responded to Mr. Allinder's second letter by informing him that the comment sheets and minutes are available for him to view and that copies of these records would be made upon his request. She noted that the Commission did not have adequate staff or facilities to piece together the plats for copying, but reaffirmed that he could review the plats and or master plans “at any time that this office is open.” Dissatisfied with the Commission's response, Mr. Allinder initiated this open records appeal.

In his letter of appeal, Mr. Allinder argues that he does not want to review the requested records, but instead wants copies of the records, including the plats. In a well-reasoned response addressed to this office, Henderson City Attorney Joseph E. Ternes, Jr., elaborates on the Commission's position. He explains that the Planning Commission staff made copies of all the minutes and written comments that Mr. Allinder had requested and “notified his office of the fact on December 31, 1996.” On January 2, 1997, a member of Mr. Allinder's staff came to the Commission's office to inquire about the requested records. He was advised that copies of the minutes and comment sheets were ready, and that the plats were available for him to take and copy himself. He refused to take any of the copies which had been made for Mr. Allinder, and left the Commission's office.

Mr. Ternes cites KRS 61.872(3)(b) to support the Commission's position that it was proper to require Mr. Allinder or his staff to view the requested records prior to receiving copies. Because of the practical difficulties associated with copying the plats, Mr. Ternes also invokes KRS 61.872(6), arguing that to copy the plats would place an unreasonable burden on the Commission. Finally, Mr. Ternes relies on KRS 61.874(1) to support the view that an applicant can be required to duplicate records if the agency lacks the equipment or facilities to do so. In closing, Mr. Ternes states as follows:

The plats Mr. Allinder requested are, or course, not written records. Consequently, the planning commission staff had the option to make copies (which it did not have the capability to do), or permit Mr. Allinder to make the copies, which the staff offered for him to do, but which offer he refused. Therefore, his appeal in that regard is without merit.

We concur.

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 Mr. Allinder's place of business is in Henderson, he can clearly be required to view the requested records at the office of the Henderson City-County Planning Commission before obtaining copies. See, e.g., 95-ORD-52; 96- ORD-186; 96-ORD-139. Although the Commission initially requested that Mr. Allinder come to their office and view the written records he requested, the Commission ultimately made the copies. The Open Records Act does not require more.

The ultimate question in this appeal is whether the Commission has a duty to make copies of the plats requested by Mr. Allinder. The answer is found in KRS 61.874(1), which provides:

(1) 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. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written record, 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.

(Emphasis added.) Mr. Allinder was informed, on two different occasions, that the Commission's office did not have extra copies of the plats he requested, nor did they have the necessary staff and equipment to make the copies for him. The Commission has given Mr. Allinder ample opportunity to view the plats or take them from the Commission's office to make the copies himself. Again, the Open Records Act does not require more.

Therefore, we conclude that the Commission acted consistently with the Open Records Act in requiring Mr. Allinder to view the requested records prior to receiving copies, and in affording him the opportunity to duplicate the plats himself.

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

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Distributed to:

Roy Thomas Allinder

President

Allinder Engineering, Inc.

324 North Elm Street

P. O. Box 137

Henderson, Kentucky 42420

Joseph E. Ternes, Jr.

City Attorney

19 South Main Street

P. O. Box 616

Henderson, Kentucky 42420

Kathy Ferrell

Assistant Planner

Henderson City-County Planning Commission

222 First Street

P.O. Box 716

Henderson, Kentucky 42420