Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request to inspect and copy public records submitted by Mr. Jon Alig to the Office of the Kenton County Attorney on November 3, 1994. Mr. Alig requested access to "records on one Toni Pfetzer in relation to current litigation . . . that has been filed by the Kenton County Attorney's Office on Ms. Pfetzer's behalf against Thomas G. Alig, Jr." Mr. Alig also requested all records "concerning Ms. Pfetzer's involvement in the IV-D program, including, but not limited to, her application, approval, and any benefits she has received, either by herself or on behalf of the minor child fathered by said Thomas G. Alig, Jr., Lauren Alig."
On November 11, 1994, Kenton County Attorney Garry L. Edmondson responded to Mr. Alig's request. Mr. Edmondson advised:
Pursuant to your letter of November 3rd, this is to advise that the information you seek is exempt under KRS 61.878(1)(a)(k)(l).
Mr. Edmondson did not elaborate. This response was issued one day after Mr. Alig submitted his appeal to this office.
The question presented in this appeal is whether the Kenton County Attorney violated the Open Records Act in responding to Mr. Alig's request. For the reasons set forth below, we conclude that Mr. Edmondson's response was pro-cedurally and substantively deficient.
KRS 61.880(1) sets forth 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 action.
Mr. Alig's request was tendered on November 3, 1994. Mr. Edmondson's response was issued on November 11, 1994. Thus, six business days elapsed between the date of the request and the date of the response. The Kenton County Attorney's failure to respond within three business days constituted a procedural violation of the Act.
Moreover, in denying Mr. Alig's request, Mr. Edmondson did nothing more than cite the ostensibly relevant exceptions to public inspection. Although he cited KRS 61.878(1)(k) and (l), relating to records made confidential by state or federal law, Mr. Edmondson did not cite the applicable state or federal law. Nor did he explain how KRS 61.878(1)(a), the privacy exception, applies to these records.
It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882(3). Mr. Edmondson did not attempt to establish that disclosure of the requested records would constitute a clearly unwarranted invasion of personal privacy. Nor did he reference the relevant state or federal law barring disclosure, or explain its application to the disputed records. We must therefore conclude that the Kenton County Attorney failed to meet his burden of proof in denying Mr. Alig's request, and that he must immediately release those records to Mr. Alig. We do not suggest that Mr. Edmondson's invocation of these exceptions was unwarranted, only that he failed to satisfy his statutory burden of proof.
Alternatively, the Kenton County Attorney 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.