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 Russell 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 to May 2006. For the reasons that follow, we find that the fiscal court's response to Mr. Skaggs' request was both procedurally and substantively deficient.
On June 12, Mr. Skaggs requested that the Russell County Fiscal Court mail him copies of records identified as follows:
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"
In mid-August 2006, the fiscal court responded to Mr. Skaggs' request by sending him a copy of Ordinance 05-8, relating to dog licensing, but nothing more. Because the ordinance was, at best, only partially responsive to his request, we find that the Russell County Fiscal Court violated the Open Records Act in the disposition of Mr. Skaggs' request.
The fiscal court's failure to respond to Mr. Skaggs' June 12 request in a proper and timely fashion constituted a violation of KRS 61.880(1). That statute 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.
The fiscal court did not respond in writing to Mr. Skaggs' request within three business days of receipt of his June 12 request. 2 When, in August, it transmitted a copy of its dog licensing ordinance to him, the fiscal court failed to describe any responsive records withheld and the statutory authority for the decision to withhold them. If no additional responsive records exist, the fiscal court was obliged to issue a written response so advising Mr. Skaggs. To the extent that it failed to do so, the fiscal court's disposition of his request was procedurally deficient.
Assuming that additional responsive records exist, no legal basis for denying Mr. Skaggs access to financial and operational records substantiating compliance with KRS 258.195, relating to animal control, was asserted and none is known to exist. 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. The fiscal court must therefore immediately mail the records identified in Mr. Skaggs' request to him or notify him in writing that no responsive records exist. Continued inaction is not an option under the law.
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
Mickey GarnerRussell County Judge/ExecutiveP.O. Box 397Jamestown, KY 42629
Mark McGahaRussell County AttorneyP.O. Box 410Jamestown, KY 42629-0410
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.
2 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
If the Russell County Fiscal Court was unable to comply with the three day statutory deadline, it was incumbent on it to discharge its obligations under this statute by promptly notifying Mr. Skaggs.