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 Pulaski County Sheriff's Department violated the Open Records Act by failing to respond to Marvin Phipps' November 30, 2006, "request for records under KRS Chapter 61." Specifically, Mr. Phipps requested access to, and copies of, records relating to:
1. Paul Phipps theft over $ 300.00 for stolen car belonging to Marvin Phipps[;]
2. Second degree forgery on a Paul Phipps[;]
3. Forgery on Earl Mounce [sic][;]
4. Forgery on Lisa Childes[.]
Having received no response to his request, Mr. Phipps initiated this appeal on December 20, 2006. For the reasons that follow, we find that the Sheriff's Department violated KRS 61.880(1) by failing to respond to Mr. Phipps' request and by otherwise failing to afford him access to all nonexempt records that were responsive to his request in the manner prescribed by law.
In 06-ORD-215, issued on November 2, 2006, this office determined that the Pulaski County Sheriff's Department violated KRS 61.880(1) when it failed to respond to an open records request in a timely fashion. At page 2 and 3 of that decision, we observed:
[T]he Pulaski County Sheriff's Department violated KRS 61.880(1) in failing to respond to [the] request in a timely fashion. That statute provides:
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181; 05-ORD-150.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receipt of an open records request. [The subject] request was dated September 15, 2006, and the Department's response was dated September 28, 2006. The Department offered no explanation for this multi-day delay in responding to [that] request. Its failure to issue a timely written response constituted a violation of the Open Records Act, specifically KRS 61.880(1). Moreover, because the Department did not furnish this office with a copy of its written response, it is unclear whether the response provided the detailed and particular information required by KRS 61.880(1) as construed in Edmondson v. Alig, above. These requirements, the Attorney General has often observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 02-ORD-187; 04-ORD-114. We urge the Pulaski County Sheriff's Department to review the cited provision to insure that future responses conform to the Open Records Act.
06-ORD-215, p. 2, 3. In the referenced open records decision, the Pulaski County Sheriff's Department responded, albeit in an untimely fashion, to the open records request that gave rise to that appeal. In the appeal now before us, the record is devoid of evidence that the Department responded in any fashion to Mr. Phipps' request.
This office has not been presented with any reason for the Pulaski County Sheriff's Department's failure to conform its conduct to the express requirements of the Open Records Act. The Department had not one, but two, opportunities to comply with KRS 61.880(1): by responding in writing, and within three business days, to Mr. Phipps' request, and by responding to his request upon receipt of this office's notification of Mr. Phipps' appeal. That notification, which was mailed on December 27, 2006, clearly stated that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal." We received no response to this notification and have not been advised that the Department has taken any action on Mr. Phipps' request or appeal.
Having provided no response to his open records request, and thus no legal basis for denying Mr. Phipps access to the requested records, the Pulaski County Sheriff's Department is in clear violation of the Open Records Act. The corollary of this proposition is that the Department must disclose the requested records to Mr. Phipps, advance a statutorily recognized basis for denying his request, advise him that it is unable to locate responsive records if, after conducting an adequate but unsuccessful search for the requested records, it so determines, or appeal this decision to the appropriate circuit court within thirty days of its receipt. KRS 61.880(5)(a). Continued inaction is not a legally viable option. The Department's duty under the law is clear.
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.