Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Somerset's handling of an open records request submitted by John Wilson. On July 26, 1996, Mr. Wilson requested access to records relating to "the proposed development on the property adjoining Bourne Ave. and Rush Branch Road." Specifically, he asked for documents furnished to the city and the planning commission, and in particular those relating to the public hearing notices which appeared in the Commonwealth Journal on May 10 and May 31, preliminary plans and proposals relating to the proposed development, and the Somerset subdivision regulations and comprehensive plan. Mr. Wilson's request was immediately forwarded to Dennis Crist, building inspector and enforcement officer for the City of Somerset.
On August 1, 1996, Mr. Crist responded to Mr. Wilson's request by sending copies of the subdivision regulations and comprehensive plan to his attorney, Wendell Lyon. Mr. Crist advised:
Any documents concerning the previous public hearings will be given to your attorney Monday as my secretary is out of town until Monday and any documents we have are locked in her filing cabinets. As far as any plans or proposals we have not received any at this time. 1
On the same day, Mr. Wilson initiated this appeal.
In a follow-up letter to this office dated August 9, Mr. Wilson complained that the city had offered no explanation for its failure to comply with the procedural requirements of the Open Records Act. Moreover, he asserted that the city had still not made full disclosure. He noted that a local reporter, Michelle Munz, saw what she believed to be preliminary plans for the subject property, in the possession of a commission member, on July 23 at a meeting of the Somerset Planning and Zoning Commission, and Mr. Wilson enclosed an affidavit from Ms. Munz attesting to these facts.
The city responded on August 16, through its attorney, Joe L. Travis. Mr. Travis refuted Ms. Munz's affidavit, arguing that the city did not receive the plans until August 14. In support, he attached six affidavits from the commission members, who swore that they did not see the plans prior to August 13. In summary, Mr. Travis maintained that the city " never had any plans in its possession or under its control, nor did they ever even see any such plans until the 14th day of August, 1996 at which time the developers finally filed same pursuant to the requirements of our Ordinance." When the plans were submitted, the city immediately "delivered" copies of them to Mr. Wilson and Mr. Lyons. In view of the misrepresentations contained in Mr. Wilson's letter and Ms. Munz's affidavit, Mr. Travis urged this office to take "appropriate action . . . for the filing of a false affidavit."
We are asked to determine if the City of Somerset violated the provisions of the Open Records Act in responding to Mr. Wilson's request. For the reasons set forth below, we conclude that the city's response was procedurally deficient. Given our limited role in an open records appeal, we cannot resolve the factual dispute between Mr. Wilson and the city relative to the withholding of the proposal for the planned unit development.
We begin by noting that KRS 61.880 2 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or are otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
Although only one day late, Mr. Crist's response was deficient to the extent that he failed to assert a legally recognized basis for postponing access to the records identified in Mr. Wilson's request. The law presumes the appointment of a records custodian "who is responsible for the maintenance, care and keeping of public records . . .," KRS 61.870(5), as well as the timely processing of open records request, and in his absence, the appointment of an alternate to fulfill his duties. The temporary absence of the recording secretary does not, in our view, make the agency's records unavailable within the meaning of KRS 61.872(5).
Moreover, the city failed "to provide particular and detailed information in response to . . . [Mr. Wilson's] request for documents." Edmondson v Alig , Ky. App., K.L.S., p. (August 2, 1996). Mr. Wilson identified several categories of records to which he desired access, but the city responded by providing only three categories of records, the subdivision regulations and comprehensive plan, the minutes of public hearings, and the proposal for the planned unit development. This office has recognized that if requested records do not exist, the public agency should specifically so indicate. OAG 86-38, OAG 90-26, OG 90-69, OAG 91-101, OAG 91-220. A public agency's response to an individual requesting to inspect documents is deficient if it fails to advise the requesting party if the documents exist. To date, Mr. Wilson has not been apprised of the existence or availability of "documents furnished to the city and the planning commission or its members" relative to the proposed development, and "preliminary plans, proposals, documents, and requests made of the city concerning these proposed developments." If any documents satisfying Mr. Wilson's request remain in the city's custody, the city should advise him accordingly and release those records to him, or invoke a statutory basis for denial. KRS 61.880(1).
In view of his limited role in an open records appeal, the Attorney General is not empowered to resolve a "swearing contest" between the parties. Mr. Wilson and the city have produced affidavits which are facially inconsistent. As we noted in 93-ORD-99, at page 4:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, "we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." 93-ORD-15, p. 6.
We urge the parties to bear this observation in mind in future open records exchanges.
If sufficient evidence exists that the city willfully concealed a public record, to wit, the proposal for the planned unit development, that evidence should be taken to the appropriate prosecutorial authorities. KRS 61.991(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. The Attorney General is not, however, authorized to render a decision on this question, or to take "appropriate action . . . for the filing of a false affidavit," in an open records appeal.
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.
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