Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville-Jefferson County Metro Government 1 violated the Open Records Act in the disposition of Randy Skaggs' June 12, 2006, request for financial and operational records relating to implementation of KRS 258.195 for the period from June 2005 to May 2006. 2 For the reasons that follow, we find that the Metro Government properly disposed of Mr. Skaggs' request by notifying him that a majority of records responsive to his request would be mailed to him upon prepayment of reasonable copying fees and postage charges, and explaining that the remaining records do not exist. 3
On June 12, Mr. Skaggs requested that Jefferson County, now the Louisville-Jefferson County Metro Government, mail him copies of records identified as:
1. Records or documentation indicating, referring to, or pertaining to your county's "animal control officer"
2. Records or documentation indicating, referring to, or pertaining to your county's "animal control shelter"
3. Records or documentation indicating, referring to, or pertaining to your county's "application for financial help"
Having received no response to his request, 4 Mr. Skaggs initiated this appeal on September 7, 2006. Given the volume of open records appeals he submitted on September 7, the Attorney General invoked KRS 61.880(2)(b)3. and extended the twenty working day time limit for issuing his decision by an additional thirty working days.
On September 22, 2006, Assistant Jefferson County Attorney Kris M. Carlton responded to this office's notification of appeal, explaining that Mr. Skaggs' original request had been misdirected and attaching a copy of Metro Government's final disposition of that request. In her response, Ms. Carlton advised Mr. Skaggs:
With regard to records for Question 1, A, B, D, E, G, and for Question 2, A, B, D, E, F, H, and I, and for Question 3, please contact Melanie Lilly at 574-4850, and you will be provided with a cost to have the records sent to you, since you are located outside of Jefferson County.
With regard to records for Question 1, D, F and H, and Question 2, C and G, there are no records in existence that meet the definition of the request.
We find that this response was entirely consistent with the requirements of the Open Records Act. 5
Louisville-Jefferson County Metro Government discharged its statutory duties under the Open Records Act by agreeing to disclose all responsive records in its custody that are responsive to Mr. Skaggs' request and advising him that some of the records identified in his request do not exist. On the latter issue, this office has observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. [Citations omitted.]
02-ORD-144, p. 3, cited in 02-ORD-163. Metro Government's response was entirely sufficient in this regard, and we therefore find no error in its disposition of Mr. Skaggs' request. We urge Mr. Skaggs to review the attached response in order to obtain the requested records that reside in Metro Government's custody.
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.
Footnotes
Footnotes
1 Mr. Skaggs June 12 request was directed to Jefferson County Judge/Executive Ken Herndon. Under the merged city-county government, the request should have been directed to the Louisville Metro Department of Finance. Upon receipt of this office's notification of Mr. Skaggs' appeal, Metro Government promptly responded.
2 KRS 258.195 provides as follows:
(1) The governing body of each county shall employ, appoint, or contract with an animal control officer, or shall contract with an entity that employs, appoints, or contracts with an animal control officer, and shall establish and maintain an animal shelter as a means of facilitating and administering KRS 258.095 to 258.500. One (1) or more counties may enter into intergovernmental agreements for the establishment of regional animal shelters, or may contract with entities authorized to maintain sheltering and animal control services. Animal shelters shall meet the standards provided by KRS 258.119(3)(b) within three (3) years after July 13, 2004. Governing bodies may adopt additional standards and ordinances related to public health, safety, enforcement, and the efficient and appropriate operation of their shelters and their animal control programs.
(2) Cities may employ, appoint, or contract with animal control officers, or may contract with an entity that employs, appoints, or contracts with animal control officers, for the enforcement of this chapter and local animal control ordinances within their corporate limits. Cities may enter into agreements with the counties for the enforcement of the county's animal control ordinances. The agreement shall include, but shall not necessarily be limited to, setting out the jurisdiction and the duties of the animal control officer respective to the agreement.
(3) Animal control officers shall have the authority to issue uniform citations, local citations, or local notices for the enforcement of the provisions of this chapter, the provisions of the Kentucky Revised Statutes relating to cruelty, mistreatment, or torture of animals, and animal control ordinances in their respective jurisdictions.
3 Mr. Skaggs indicates that Metro Government's response did not reach him. Although we are not statutorily obligated to do so, we are appending a copy of that response to our open records decision in the interest of expediting resolution of his dispute.
4 See note 1, above.
5 KRS 61.872(3) clearly provides that a public agency may require prepayment of all copying fees, and the cost of postage, as a precondition to delivery of records through the mail. Mr. Skaggs fully acknowledges his obligation to pay these fees in advance of receipt of copies.