Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the McCreary County Jailer violated the Kentucky Open Records Act in failing to respond upon receipt of Lewis Davenport's request for "a complete copy of" records and information relating to "Case # 01-M-00486," including "the dates of his arrest and subsequent release on this charge and a complete total of days actually spent in custody on this charge." By letter dated April 10, 2007, Mr. Davenport initiated this appeal challenging the failure of McCreary County Jailer Tony Ball to "timely answer" his request for information concerning the specified case. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Mr. Ball and McCreary County Attorney Ralph P. Chaney on April 16, 2007, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," this office has not received a response as of this date nor have we been advised that Mr. Ball has taken any action relative to Mr. Davenport's request.
As a public agency, the Jailer must comply with both the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996)(emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id.; 01-ORD-183, pp. 2, 3. It logically follows that failing to respond constitutes a violation of the Act.
Here, the Jailer had two opportunities to discharge his statutory duty under KRS 61.880(1); first, upon receiving Mr. Davenport's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the Jailer has not yet responded to Mr. Davenport's request; the failure of his office to respond in writing, within three business days, constitutes a clear violation of KRS 61.880(1). Public agencies such as the Jailer are not permitted to elect a course of inaction. As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
Because the Jailer did not respond to Mr. Davenport's request, the Jailer necessarily failed to advance a legal argument in support of his apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency, . . . ." That being the case, the Jailer must provide Mr. Davenport with copies of any existing records in its custody which are responsive to his request unless the Jailer can meet his burden of proof by articulating a basis for denying access in terms of one or more the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the Jailer's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 1 If the Jailer "does not have custody or control" of any records identified in Mr. Davenport's request, the Jailer "shall notify [Mr. Davenport] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the Jailer performs these functions, his office stands in violation of the Open Records Act. <<2>
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 proceedings.
Lewis Davenport, # 158983
Tony Ball, JailerMcCreary County JailCourthouse SquareWhitley City, KY 42649
Ralph P. ChaneyMcCreary County AttorneyP.O. Box 700Whitley City, KY 42653-0700
Footnotes
Footnotes
1 If no records exist which are responsive to portions of Mr. Davenport's request, the Jailer must affirmatively indicate as much in writing to Mr. Davenport immediately. On this issue, the Attorney General has consistently held:
[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 so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Jailer must ascertain whether records exist which are responsive to Mr. Davenport's request and promptly advise him of the findings--nothing more, nothing less.