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 Oldham County Fiscal Court violated the Open Records Act in failing to respond to Judy L. Ponder's April 19, 1999, open records request. For the reasons that follow, we find that the Fiscal Court's inaction relative to her request constituted both a procedural and substantive violation of the Act.
In her April 19 letter to County Judge/Executive John W. Black, Ms. Ponder requested access to and copies of:
. the County's contract solicitation, award, payment records of the Oldham County Building Compliance Inspector, Mr. Tom McKinney or his businesses, "Tri-County Inspections" [;]
. the County contract(s) with Mr. McKinney and his businesses etc. for the period of 1992 to date, and contract amendments[;]
. a copy of the job description of government officials who have responsibility for this contract.
Ms. Ponder hand-delivered her request on April 19, but apparently received no response. This appeal followed. 1
On April 28, 1999, this office mailed a notification of receipt of Ms. Ponder's open records appeal to Judge Black and Oldham County Attorney John R. Fendley. A copy of Ms. Ponder's letter of appeal was attached to the notice, and the notice clearly stated that the Fiscal Court "may respond to this appeal." The Attorney General received no response from either the county judge or the county attorney. Accordingly, we assume that the facts presented by Ms. Ponder are accurate. Based on these facts, we conclude that the failure of the Oldham County Fiscal Court to respond to Ms. Ponder's request, and to produce for her inspection and copying all nonexempt public records which were responsive to her request, constituted a violation of the Open Records Act. 2
KRS 61.880(1) establishes procedural guidelines for public 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 agency action.
This office has not been presented with any reason for the Oldham County Fiscal Court's failure to conform its conduct to the clear requirements of the Open Records Act. The Fiscal Court had not one but two opportunities to comply with KRS 61.880(1) by responding in writing, and within three business days, to Ms. Ponder's original request, and by responding to her request upon receipt of this office's notification of appeal. The Fiscal Court took no action. This omission is exacerbated by the fact that the records which Ms. Ponder requested are of a clearly public nature, and no justification for withholding the records has been presented. 3
The Oldham County Fiscal Court must make immediate arrangements for Ms. Ponder to inspect, and receive copies of, the records identified in her request.
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.
Footnotes
Footnotes
1 Ms. Ponder describes or documents a series of open records exchanges with various agencies and officials, including the building inspector, the planning and zoning administrator and the county attorney. Our analysis is confined to her April 19 request. To the extent that the inaction of these agencies or officials resulted in Ms. Ponder's inability to access nonexempt public records, these agencies or officials should be guided by our conclusions herein. Should Ms. Ponder encounter additional resistance from these officials or agencies, she may initiate separate open records appeals.
2 On May 17, 1999, this office received a copy of a letter signed by Mr. Fendley, and dated May 14, 1999, one day after this decision had been drafted and submitted for review. In that letter, Mr. Fendley stated that he, the County Judge, and Ms. Ponder had met to discuss her request and that she would receive "an official response by mail no later than May 19." Mr. Fendley further indicated that she would be provided "all documents that are in existence." To the extent that the county's response resolves the substantive issues of records access in this appeal, those issues are, in fact, moot. To the extent that the county's response does not resolve, or even address, the issues of procedural noncompliance, we believe that those issues are still ripe for review.
3 See footnote 2 above.