Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Bullitt County Attorney violated the Open Records Act in the disposition of Thomas B. Givhan's request for copies of certain correspondence the County Attorney may have had. For the reasons that follow, we find that the agency's disposition of Mr. Givhan's request was procedurally deficient but substantively correct.
By letter dated June 25, 2003, Mr. Givhan submitted the following open records request to Walter A Sholar, Bullitt County Attorney:
Please forward to me copies of all correspondence you have had with the City of Mt. Washington, any of its elected officials, employees, advisors, consultants or any individuals or entities since January 1, 2003, concerning me, my land, Bartram Hall, Bogard Woods, its developers, Norman Noltemeyer and Ron Brady, concerning any subject, but in particular any zoning change or zoning map amendment of my land by the Bullitt County Joint Planning Commission or the Bullitt Fiscal Court or concerning annexation of any part of my land by the City of Mt. Washington or the extension or refusal to extend sanitation sewers within the Mt. Washington 201 Facilities Plan or the City of Shepherdsville 201 Facilities Plan or any members of the Commission or members of the Fiscal Court that you sent or received.
In his letter of appeal to this office, dated July 1, 2003, Mr. Givhan stated that his request was hand-delivered to Mr. Sholar's office on June 25, 2003, was received by Ms. Candice Bryant, and that as of July 1, 2003, he had not received a response to this request.
After receipt of notification of the appeal and copy of the letter of appeal, Mr. Sholar provided this office with a copy of his July 7, 2003 response to Mr. Givhan. In that response, Mr. Sholar advised:
I was out of the office from June 27, 2003, until July 7, 2003 on vacation. I did not receive your correspondence and your request for copies of correspondence until July 7, upon my return.
I have discussed with Ms. Bryant and my staff the importance of providing me with correspondence that is delivered to them as soon as possible so that I may respond appropriately. Please note, however, that I, the official custodian of my correspondence, did not receive the correspondence you referred to in your letter to General Chandler of July 1, 2003, until July 7, 2003.
I am not in possession of any copies of correspondence with the City of Mt. Washington, any of its elected officials, employees, advisors, consultants or any individuals or entities since January 1, 2003, concerning you, your land, Bartram Hall, Bogard Woods, its developers, Norman Noltemeyer and Ron Brady, concerning any subject, particularly any zoning change or zoning map amendment of your land by the Bullitt County Joint Planning Commission or the Bullitt Fiscal Court or concerning annexation of any part of your land by the City of Mt. Washington or the extension or refusal to extend sanitation sewers within the Mt. Washington 201 Facilities Plan or the City of Shepherdsville 201 Facilities Plan or any members of the Commission or members of the Fiscal Court that have been sent or received by me. I have not corresponded with any of the people mentioned above concerning any of the issues mentioned above and have not received any correspondence from anyone concerning said issues, either in my capacity as Bullitt County Attorney or otherwise. However, I am enclosing a copy of a case, with my cover letter, I mailed to Sam Beicher and Joetta Calhoun, members of the Mt. Washington City Counsel pursuant to their request.
From a procedural standpoint, the agency's disposition of Mr. Givhan's request was deficient. The procedures governing agency response to open records requests are set forth at KRS 61.880(1), which 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.
To the extent that the Office of the Bullitt County Attorney failed to issue a written response to Mr. Givhan's request within three business days, the agency violated KRS 61.880(1). The fact that Mr. Sholar, the official custodian of the requested records, was out for vacation or did not receive the request until his return from vacation, did not relieve the agency of its duty to issue a timely, written response. 98-ORD-161; 00-ORD-226. If, for some reason, an adequate search could not be conducted in his absence, the agency should have promptly notified Mr. Givhan, and provided him with an explanation for the delay and the earliest date he might expect to receive a substantive response to his request. KRS 61.872(5). The three-day statutory response time is not tolled by the absence of the agency's records custodian. It is incumbent on the agency to make proper provision for the uninterrupted processing of open records requests
From a substantive point of view, we find no error in the agency's response to Mr. Givhan's request. It is well established that a public agency cannot afford a requester access to a record that it does not have or that does not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, Mr. Sholar's response in affirmatively advising Mr. Givhan that he did not have the requested records or that they did not exist was consistent with the Open Records Act and prior decisions of this office and did not constitute a 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.
Thomas B. GivhanProfessional Building, Suite One200 South Buckman StreetShepherdsville, KY 40165-0065
Hon. Walter SholarBullitt County Attorney129 West 4th StreetShepherdsville, KY 40165