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 City of Brownsboro Farm violated the Open Records Act in the disposition of Timothy J. Eifler's July 14, 2006, request for certain of the City's records relating to the real property tax rate and real property assessments. For the reasons that follow, we find the City violated the Act in failing to respond in writing, and within three business days, to Mr. Eifler's request, either by advising of its decision to comply with the request; or if denying in whole or in part, access to the requested records, including a statement of the exception authorizing the withholding of the records and a brief explanation how the exception applies to the record withheld; or alternatively advising that the requested records do not exist. KRS 61.880(1).
By letter date July 14, 2006, Mr. Eifler submitted a request to the Mayor of Brownsboro Farm, requesting copies of the following documents:
1. Ordinance adopting a real property tax rate for property assessed as of January 1, 2006 assessment date.
2. With respect to the above real property tax rate advertisements made in the local newspaper proposing property rates pursuant to KRS 132.027(2)(b) or notice sent to owners of real property pursuant to KRS 132.027(2)(c) [instead of running the newspaper ad].
3. With respect to the above real property tax rate, advertisement made in the local newspaper proposing property tax rates pursuant to KRS 132.027(2)(b).
We have confirmed that the Kentucky Department of Revenue has not certified the Jefferson County property tax roll under KRS 133.180 for the January 1, 2006 assessment date. We also formally request a copy of the certified real property assessments upon which the City of Brownsboro Farm based the above real property tax rate in accordance with KRS 133.185.
In his letter of appeal, dated July 24, 2006, Mr. Eifler advised that, as of that date, he had not received a response from the City and argues that the City had failed to comply with KRS 61.880(1).
After notification of the appeal was sent to the parties, Mr. Eifler, by letter dated August 3, 2006, indicated to this office that he had received an envelope from the City with no cover letter or any other explanation. He then addressed the City's response, by advising:
The City has responded to request # 1 but has not responded to requests # 2 and # 3.
The City did not either provide us with the documents requested in # 2 or confirm that those documents do not exist.
As to request # 3, the City provided us with a preliminary tax roll for the City. The City is designated by the Jefferson County PVA as satellite city # 116 on the Jefferson County tax roll. The tax roll provided is identified as a preliminary tax roll for the satellite city # 116 (see "Prmlim116txt" in upper left-hand corner) issued April 10, 2006. The City did not either provide us with the certified tax roll requested in # 3 or confirm that that document does not exist.
As a public agency, the City must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996) (emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id.; 01-ORD-183, pp. 2, 3. It logically follows that failing to respond constitutes a violation of the Act.
The City had two opportunities to discharge its statutory duty under KRS 61.880(1) ; first, upon receiving Mr. Eifler's request, and second, upon receiving the notification of his appeal from this office. Although the City provided Mr. Eifler with a copy of the record in his request # 1, it has not issued a written response to Mr. Eifler's request; its failure to respond in writing, within three business days, constitutes a clear violation of KRS 61.880(1). Public agencies such as the City are not permitted to elect a course of inaction. As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3.
The City failed to respond in writing as to Mr. Eifler's requests # 2 and # 3, dealing with newspaper advertisements and notice to real property owners concerning real property tax rates. This was a violation of the requirements of KRS 61.880(1). The City must respond to these requests in writing, either by advising of its decision to comply with the requests; or if denying in whole or in part, access to the requested records, it must include a statement of the exception authorizing the withholding of the records and a brief explanation how the exception applies to the records withheld; or alternatively advising that the requested records do not exist. KRS 61.880(1).
With respect to Mr. Eifler's request for a copy of the certified real property assessments upon which the City of Brownsboro Farm based the above real property tax rate in accordance with KRS 133.185, he advised that the City had provided a copy of the "a preliminary tax roll for the City." As to this issue, the City failed to advise Mr. Eifler that it would provide him with a copy of the certified tax roll or affirmatively advise him that a certified tax roll does not exist. This office has consistently observed that an agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists." See, 06-ORD-088. Accordingly, the City's failure to advise Mr. Eifler as to whether a certified copy of the tax roll exists was a violation of KRS 61.880(1). The same would apply to Mr. Eifler's requests # 2 and # 3.
The access issue as to Mr. Eifler's request # 1 is moot, as that record has been provided to him. 40 KAR 1:030, Section 6.
Because City did not respond in writing to Mr. Eifler's request, it necessarily failed to advance a legal argument in support of its apparent denial of requests # 2 and # 3, as well as the request for a certified copy of the real property tax roll. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency, . . . ." That being the case, the City must provide Mr. Eifler with copies of any existing records in its custody which are responsive to his request unless the City can meet its burden of proof by articulating a basis for denying access in terms of the exceptions set forth at KRS 61.878(1)(a) through (n). Until the City so responds, it stands in violation of the Open Records Act. Accordingly, the City must promptly respond to Mr. Eifler by providing a response consistent with the requirements of KRS 61.880(1), as set out above.
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 party in that action or in any subsequent proceeding.
Timothy J. EiflerStoll Keenon Ogden2000 PNC Plaza500 West Jefferson StreetLouisville, KY 40202-2874
Mayor Eric CerroCity of Brownsboro Farm8455 Brownsboro RoadLouisville, KY 40241
Larry C. Ethridge410 West Main Street, Suite 1200Louisville, KY 40202