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 actions of the Department of Fish and Wildlife Resources in response to Keith Brackett's open records request violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, the Department did not violate the Act.
By letter dated November 3, 2006, Mr. Brackett made a request for the following records:
1. All documents related to J. Keith Brackett.
2. All documents related to a complaint of poaching turkeys on April 1, 2006, near J. Keith Brackett's home on Rt. 3, Brodhead -- Rockcastle County, Kentucky.
3. All documents related to the termination of employment of Wildlife Officer Mr. Steve Isaacs.
By letter dated October 12, 2006, Rose Mack, Records Custodian, responded to the request on behalf of the agency, advising:
Per your request dated "11-3-06" and received by the Kentucky Department of Fish and Wildlife Resources on October 9, 2006, a final response will be forwarded to you shortly.
On October, 26, 2006, Mr. Brackett initiated the instant appeal asserting that he had received no further response to this request.
On November 1, 2006, the Department provided this office with a copy of its October 26, 2006, response to Mr. Brackett, which addressed his three numbered requests as follows:
(1) All documents related to Mr. J. Keith Brackett -- I am unable to provide you license data and harvest data without a social security number. If you would please provide me with a social security number, I will be happy to provide you with the requested information.
(2) All documents related to a complaint of poaching turkeys on April 1, 2006, near J. Keith Brackett's home on Rt. 3, Brodhead -- Rockcastle County, Kentucky. -- According to the Law Enforcement Division, they are unable to locate information regarding a complaint. If you are inquiring as to whether someone was issued a citation for poaching, please provide me with the person's name and address, if possible, and we will check the citation database for possible citation information.
(3) All documents related to the termination of employment of Wildlife Officer Mr. Steve Isaacs -- Enclosed please find the requested information.
For the reasons that follow, we find that, with the exception of a procedural deficiency, the Department's actions did not violate the Open Records Act.
Addressing the procedural issue first, KRS 61.872(5) provides that, if there is to be a delay in producing the requested records which exceeds three business days after receipt of the request, that the agency give the requester a detailed explanation for the cause of further delay and the place, time, and earliest date on which the public record will be available for inspection. In its initial response, the Department advised Mr. Brackett "a final response will be forwarded to you shortly." This response gave neither a detailed explanation for the cause for the delay nor the precise day and time when Mr. Brackett might expect a decision as to whether he would be provided access to the requested records. Failure to provide an explanation for the delay or to provide a date specific, even though it may only be an estimate, does not give the requester enough information to determine whether access to the records will be provided within a reasonable period of time. Accordingly, we find the initial response was procedurally deficient and a violation of the Open Records Act. KRS 61.872(5); 05-ORD-262.
We next address the substantive issues raised in the appeal. In the Department's responses to numbered requests 1 and 2, the agency did not deny the requests, but asked that Mr. Brackett provide additional information to assist in identifying and locating the requested records. In numbered request 1, the Department advised Mr. Brackett that it would need a social security number to locate license data and harvest data related to him. On this issue, this office has recognized that this may be "a reasonable response by the agency to obtain specific information identifying the requester to enable it to do a complete search for records pertaining to the requester. " 00-ORD-216, citing 99-ORD-9, p. 3. In numbered request 2, the Department advised Mr. Brackett that its Law Enforcement Division were unable to locate records relating to a complaint of poaching turkeys near his home, but stated that, if he was asking whether someone was issued a citation for poaching, he should provide them with the person's name and address, if possible, and they would search the citation database for the citation information. This, too, was not a denial, but a request for clarification of the request and additional information to identifying and locating records responsive to the request. Under these facts, we find no violation of the Open Records Act. To the extent no records exist responsive to Mr. Brackett's request as framed, the Department affirmatively indicated as much to him in its written response, nothing more is required. 05-ORD-189.
In response to Mr. Brackett's numbered request 3 for records "related to the termination of employment of Wildlife Officer Mr. Steve Isaacs," the Department, along with its October 26, 2006, response, provided Mr. Brackett with copies of records responsive to this request. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since Mr. Brackett has been provided records responsive to this portion of his request, the issue as to access to these records is moot and no decision will be rendered in this regard.
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.