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 Nicholas County Fiscal Court 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 1 for the period from June 2005 through May 2006. Those records were specifically identified as:
1. Records or documentation indicating, referring to, or pertaining to your county's "animal control officer"
a. the name of the animal control officer and the length of time of his or her employment
b. the animal control officer's weekly, monthly, or annual financial compensation
c. hours per week worked as an animal control officer and whether part-time or full-time
d. animal control officer's employment by the county in another department or job capacity
e. animal control officer's accreditation or certification and training programs attended.
f. specific types of lists, records, and reports kept weekly, monthly, and yearly which address or pertain to stray or unwanted dogs and cats and owner relinquished animals (just a few sample copies, not for the entire year)
g. animal control officer's vehicle type and whether furnished by the county or is privately owned by the animal control officer
h. Number of dogs euthanized by gunshot, date, and reason why
2. Records or documentation indicating, referring to, or pertaining to your county's "animal control shelter"
a. printed and published location of the animal shelter including the street address and telephone number (telephone directory listing would be satisfactory) and photographs of facility if available
b. ownership of the animal shelter by the county, privately owned business, individual, or nonprofit organization (and their pertinent names, mailing address, and telephone number)
c. copies of all contractual agreements between county and nonprofit organization, shelter owner, or operator if not county owned
d. name of the part-time or full-time director or manager of the animal shelter and the number of animal shelter employees and whether part-time or full-time
e. itemization of total annual operating costs and expenditures (including all salaries) plus yearly budget ( from June, 2005 through May, 2006 )
f. printed and published hours of operation (copy of)
g. method of euthanization utilized and amount spent per year ( from June, 2005 through May, 2006 ); receipts too
h. number of animals (dog, cats, puppies, and kittens) euthanized per month and total for the entire year ( from June, 2005 through May, 2006 )
i. method of disposal of dead animals
3. Records or documentation indicating, referring to, or pertaining to your county's "application for financial help"
a. letter of application to the Kentucky Department of Agriculture's Animal Control Advisory Board for a grant with which to construct an animal shelter or improve upon the existing one[.]
Mr. Skaggs agreed to prepay reasonable copying charges not to exceed ten cents per page and the cost of postage. Although the fiscal court initially advised Mr. Skaggs that it would honor his request, the requested records were not released prompting Mr. Skaggs to initiate this open records appeal.
In supplemental correspondence directed to this office following commencement of Mr. Skaggs' appeal, the fiscal court acknowledged that it originally agreed to honor his request, but indicated that "[U]pon further consideration . . . submits that the 'Statewide Open Records Request' entitled 'Closet Hicks' . . . was intended to be degrading and demeaning to those dedicated individuals across the state who serve the public." For this reason, the fiscal court asked that Mr. Skaggs "initial request . . . be rendered null and void . . . ." In closing, the fiscal court agreed to "strive to comply" with any subsequent request "which is concise and respectful to the recipient thereof." Nevertheless, on February 14, 2007, Judge Larry Tincher orally notified the undersigned that the fiscal court would transmit the requested records to Mr. Skaggs in a few days. This office has not been apprised that any efforts have been made in that regard, and we are left to assume that the fiscal court reconsidered its reconsidered position, and again decided that it would not honor Mr. Skaggs' request owing to its disrespectful tone. We find this position untenable and conclude that the decision to ignore Mr. Skaggs' request constituted a violation of KRS 61.880(1).
In discharging its obligations under the Open Records Act, the Office of the Attorney General focuses exclusively on the language of the Act. KRS 61.872(2) states that the official custodian of a public agency may require a records requester to submit a "written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." See 94-ORD-101. The fiscal court does not argue that Mr. Skaggs' request fails to satisfy the statutory requirements, but instead objects to the disrespectful tone of the request. We find no legal basis in the language of the Act for the position that the requester's disrespectful tone relieves the agency of its statutory obligations under the Act. "While an open records request may not be the proper vehicle for criticism of official conduct and argumentation," 98-ORD-62, p. 2, we believe the interest of the Commonwealth is best served by an agency's strict adherence to the legal requirements of the Act, including a timely written response to an open records request, notwithstanding the tenor of that request.
We find that in failing to follow through on its apparent commitment to provide Mr. Skaggs with copies of the records identified in his request, the fiscal court violated the Open Records Act. Because no exception exists authorizing nondisclosure of financial and operational records documenting compliance with a statutory mandate relating to animal control, we further find that the fiscal court must mail the requested records to Mr. Skaggs without delay. If no responsive records exist, the fiscal court must immediately issue written notification to Mr. Skaggs so advising him.
The Kentucky Supreme Court has declared:
The public's right to know is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 328 (1992) (emphasis added). Disclosure of the records Mr. Skaggs seeks will clearly advance an open records related public purpose by enabling the public to monitor the fiscal court's compliance with KRS 258.195. Continued inaction is not a viable option for the Nicholas County Fiscal Court.
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.
Randy Skaggs
Larry TincherNicholas County Judge/ExecutiveP.O. Box 167Carlisle, KY 40311
Dawn C. LetcherNicholas County Attorney125 East Main StreetNicholas County CourthouseCarlisle, KY 40311
Footnotes
Footnotes
1 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.
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