Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Public Records Division of the Department for Libraries and Archives violated the Open Records Act in its handling of James Cash's December 23, 1997, request for a copy of Jefferson Circuit Court indictment number 86-CR-1330. Mr. Cash, who originally filed his request with the Jefferson County Circuit Court Clerk, was advised by the clerk to direct his request to the Division because the record had been archived. Having received no response to his request, Mr. Cash initiated this appeal on January 22, 1998. For the reasons which follow, we find that the Division violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Cash's request, but that this violation is mitigated by its admission of error and its decision to revise its policies relating to open records requests for records housed in the State Records Center.
In response to this office's notification of receipt of open records appeal, Division Director Richard Belding advised us that in attempting to locate the requested record, the Division learned that in October, 1997, the record was transferred from the State Records Center to the Jefferson Circuit Court for undisclosed reasons. Following Mr. Cash's request to the Division, the record was forwarded to Criminal Division 2 of the Jefferson Circuit Court where requests for copies are handled, and where it apparently remains "awaiting completion of the requested action."
Continuing, Mr. Belding explained existing procedures for responding to open records requests for records housed in the State Records Center, as opposed to the State Archives:
Records housed at the SRC are still in the administrative use of the originating agency and while physically under the control of the department, are under the legal custody of the originating agency, and agency Records Officers control access to them. In these situations, we regularly forward such requests to the originating agency, with the request that they respond appropriately. In these cases, if we hold the record, we work cooperatively with the originating agency, promptly forwarding records or copies of the desired information, as requested, to them, for subsequent release.
As a result of this appeal, Mr. Belding indicated that the Division will implement a new policy the purpose of which is to "promptly advise the requesting party in writing as to whether [the Division] hold[s] the record or not and of any necessary communication the party should make with the agency that created the record." In closing, Mr. Belding noted that the Division receives numerous non-open records requests each day which it responds to "as promptly as resources permit," but that it endeavors to comply with the procedural requirements set forth in KRS 61.880(1) in responding to open records requests like Mr. Cash's.
It is apparent that the Public Records Division of the Department for Libraries and Archives is familiar with its statutory duties under the Open Records Act. We therefore will not belabor these issues. The Division erred in failing to issue a written response to Mr. Cash's request within three business days. As noted, this violation is mitigated by the Division's admission of error and revision of existing records policies relative to records in the State Records Center. The policy which the Division proposes to implement comports with the requirements of KRS 61.872 (4). That provision states:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Although the State Records Center serves as a central repository for public records, these records apparently remain under the administrative use and legal custody of the originating agency. It is sufficient, in our view, if the Division notifies the requester that it is not the custodian of the record, and furnishes him with the name and location of the official custodian of that record. Given its unique function, we believe that the Division can and should continue to forward requests to the originating agency for response, although it is not statutorily obligated to do so. No doubt, this additional step will expedite the process, and reduce delays in release of the records.
With respect to Mr. Cash's request that the Attorney General award him twenty-five dollars for each day that he was denied access to the record, we note that this office is not empowered to impose monetary penalties for violations of the Open Records Act. See, e.g., 95-ORD-88 (holding that pursuant to KRS 61.882(5), an individual must proceed through circuit court to obtain a monetary award for violation of the Act).
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.