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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 Pike County Tourism Department violated the Open Records Act in failing to respond to John and Barbara Vance's September 25, 2002 request to inspect "[t]he McCoy Cemetery file [and a]ny and all correspondence that mention [the Vances] by name including but not limited to the following named people or agencies . . . ." 1 For the reasons that follow, we find that the Department violated KRS 61.880(1) in failing to respond to the Vances' request.

Having received no written response to their September 25 request, the Vances initiated this open records appeal by letter dated October 14, 2002. On October 17, 2002, the Attorney General sent a copy of their letter of appeal, along with our own notification of receipt of the open records appeal, to Phyllis Hunt, Pike County Tourism Department, and Howard Keith Hall, Pike County Attorney. In that notification, we advised that "[p]ursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal." We received no response to our notification and have not been advised that the Department has taken any action relative to the Vances' request.

The Pike County Tourism Department's failure to respond to the Vances' September 25, 2002 request in a proper and timely fashion constitutes a violation of KRS 61.880(1). 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.

"The language of the statute directing agency action is exact."

Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It requires a timely written response to the person making the request accompanied by the requested records or a statement of the specific exception authorizing nondisclosure. Agency inaction is not a viable option. 01-ORD-111, p. 2.

This office has not been presented with any reason for the Department's failure to comply with KRS 61.880(1). The Department had two opportunities to comply with the provision: First by responding to the Vances' original open records request and second by responding to their request upon receipt of this office's notification of appeal. The written record before us indicates that the Department took no action.

The Vances' September 25 letter to Ms. Hunt is identified, in bold print, as an open records request. Having provided no response to the request and, thus, no legal basis for denying the Vances access to the requested records, the Pike County Tourism Department must make immediate arrangements for the Vances to inspect those records, if they exist. 02-ORD-186. If no responsive records exist, the Department must immediately issue a written response so notifying the Vances.

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.

John F. and Barbara L. Vance3962 State Hwy. 319Hardy, KY 41531

Phyllis HuntPike County Tourism Dept.P.O. Box 1497Pikeville, KY 41502

Howard Keith HallPike County AttorneyP.O. Box 1289Pikeville, KY 41502-1289

Footnotes

Footnotes

1 The Vances' request identified eleven individuals or entities by name.

LLM Summary
The decision finds that the Pike County Tourism Department violated the Open Records Act by failing to respond to an open records request from John and Barbara Vance. The Department did not provide any response to the initial request or to the subsequent notification of appeal from the Attorney General's office. The decision mandates that the Department must either allow inspection of the requested records if they exist or notify the Vances in writing if no responsive records exist. The decision follows established precedents that require timely agency responses to open records requests.
Disclaimer:
The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Requested By:
John and Barbara Vance
Agency:
Pike County Tourism Department
Type:
Open Records Decision
Lexis Citation:
2002 Ky. AG LEXIS 176
Forward Citations:
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