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 Department of Housing, Buildings and Construction violated the Open Records Act in failing to respond to Kenneth A. Crawford's May 22, 2003 request for five categories of records relating to various properties in Mayfield, Kentucky. Having received no official response from the Department, 1 Mr. Crawford initiated this open records appeal to the Attorney General questioning the Department's inaction for a period of time exceeding sixty days. For the reasons that follow, we find that the Department violated KRS 61.880(1) in failing to respond, and that having advanced no argument in support of denial of Mr. Crawford's request, it should provide him with copies of the requested records upon payment of reasonable copying and postage charges if it elects to impose such charges. 2 Given the unusually lengthy and unexplained delays Mr. Crawford has already experienced, we believe that the Department is obligated to take immediate action on his request.
On July 29, 2003, this office issued notification of Mr. Crawford's appeal to the Department. Although the notification clearly stated that pursuant 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 Mr. Crawford's request.
The Department of Housing, Buildings and Construction's failure to respond to Mr. Crawford's May 22, 2003 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 Department had at least two opportunities to comply with KRS 61.880(1): by responding to Mr. Crawford's original request and by responding to his request upon receipt of this office's Notification of Appeal. 3 The Department failed to do so.
The Department has asserted no statutory basis for denying Mr. Crawford's request for records. Because the Department is assigned the burden of proof in sustaining its actions under KRS 61.880(2)(c) and has advanced no legal argument supporting nondisclosure, we hold, as a corollary to our decision that the Department violated KRS 61.880(1), that the requested records should be disclosed to Mr. Crawford without further delay. Accord, 03-ORD-182.
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.
Kenneth A. Crawford806 N. 11th StreetMayfield, KY 42066-1102
Frank L. Dempsey, General CounselDivision of Housing, Buildings and ConstructionDivision of Building Codes Enforcement101 Sea Hero DriveFrankfort, KY 40601
Footnotes
Footnotes
1 In a series of emails directed to the Department's General Counsel, Frank L. Dempsey, the first of which was transmitted on July 8, 2003, Mr. Crawford attempted to ascertain the status of his request. Although Mr. Dempsey repeatedly assured Mr. Crawford that release of the records was imminent, the Department had not honored his request as of the date of his appeal, July 23, 2003.
2 In his original request, Mr. Crawford asked for a waiver of fees based on his unique circumstances. The Open Records Act contains no provision for the waiver of copying and postage fees for any party. 94-ORD-90 (media representative); 99-ORD-30 (indigent inmate); 03-ORD-057 (litigant). The Department may elect to waive these fees, but is not legally obligated to do so.
3 In addition, the Department might have taken the opportunity to formally respond to any of Mr. Crawford's emailed inquiries concerning his request.