Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Grant County Detention Center violated the Open Records Act in failing to respond to Christopher Estep's December 10, 2003 open records request for:
1) the agreement between this facility and the Kentucky Dept. of Corrections relating to the housing of state inmates and all services and maintenance to be provided said prisoners;
2) All Kentucky Revised Statutes relating to the duties of the jailer and the maintenance of prisoners at the jail.
Having received no response to his request, Mr. Brewer initiated this open records appeal by letter dated January 8, 2004, and received in this office on January 12, 2004. For the reasons that follow, we conclude that the Grant County Detention Center violated the Open Records Act.
On January 13, 2004, one day after we received Mr. Estep's appeal, the Attorney General sent a copy of Mr. Estep's letter of appeal, along with our notification of receipt of open records appeal, to the Detention Center and the Center's attorney. Although that notification clearly states 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 what, if any, action the Center has taken relative to Mr. Estep's appeal.
The Grant County Detention Center's failure to respond to Mr. Estep's December 10, 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 Grant County Detention Center had not one, but two, opportunities to comply with KRS 61.880(1), by responding to Mr. Estep's original request, and by responding to his request upon receipt of this office's notification of appeal. The Center failed to do so.
Because the Grant County Detention Center did not respond to Mr. Estep's request, or this office's notification of appeal, it advanced no legal basis for denying that request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency . . . ." The Center's failure to respond to the open records request is tantamount to a denial of that request without specific support in the form of "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. " KRS 61.880(1). 02-ORD-116. Accordingly, the Center should immediately respond to Mr. Estep's request or otherwise make the records available for his inspection. If Mr. Estep wants copies of the requested records, the Center may require prepayment for copies, not to exceed ten cents per page.
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 proceedings.
Christopher EstepGrant County Detention Center212 Barnes RoadWilliamstown, KY 41097
Mr. Steve KellamGrant County Jailer212 Barnes RoadWilliamstown, KY 41097
Edward LorenzGrant County AttorneyCourthouse101 North Main StreetWilliamstown, KY 41097