Request By:
Jo Ella WattsJackie Joseph
Letcher County Water and Sewer District
P.O. Box 827
Whitesburg, KY 41858-0827Harold D. Bolling
Letcher County Attorney
40 Main Street
Whitesburg, KY 41858
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 Letcher County Water & Sewer District violated the Open Records Act in the disposition of Jo Ella Watts' July 16, 2007, request to inspect and copy "all letters/reports given or sent to potential water customers." The request, which contained the signatures of twenty additional requesters, and referenced "Camp Branch/Stinking Branch and Indian Creek Water Line Trust Agreement" and "Letcher Circuit Court Civil Action # 99-CL-119-120-121," went unanswered, prompting Ms. Watts to initiate this open records appeal. For the reasons that follow, we find that the District's response was procedurally deficient and substantively correct only if it intends to afford Ms. Watts and her fellow requesters unfettered access to all responsive records.
In correspondence directed to Ms. Watts following commencement of her appeal, a copy of which was mailed to this office, District Office Manager Jackie Joseph acknowledged receipt of the request, but expressed the belief that Ms. Watts "would contact [the District's] office to set a time and date for [review of] any requested information." Continuing, Ms. Joseph advised that Ms. Watts is:
More than welcome to come to our office, although the only correspondence we have had with any of the Trust plaintiffs was in the form of mailing, at his request, a blank Water User Agreement to Mr. John Jent, Jr., for his reviewing. Should you let us know what you are looking for, we will be glad to offer our assistance.
Neither the District nor Ms. Watts have notified this office that this dispute was satisfactorily resolved as a result of this letter.
We begin by noting that the Letcher County Water and Sewer District violated KRS 61.880(1) in failing to respond to Ms. Watts' July 16 open records request in writing and in a timely fashion. 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.
(Emphasis added.) In construing KRS 61.880(1), 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 detailed and particular information in response to a request for documents . . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act -- much less amount[] to substantial compliance.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. 1996); 04-ORD-181; 05-ORD-150; 07-ORD-014. The failure to respond in any fashion is particular egregious.
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. Ms. Watts' request was dated July 16, 2007. The District did not respond to her request until August 23, 2007, and then only after it received notification of her open records appeal from the Attorney General. The only explanation the District offered at that time was that it "assumed [Ms. Watts] would contact [the District's] office to set a time and date for" review sometime after she submitted her request. This does not represent a legally recognized basis for failing to comply with KRS 61.880(1), and improperly shifts the burden to the requester to take affirmative action to insure access to public records. We therefore find that the District violated this provision of the Open Records Act in the disposition of Ms. Watts' request.
Having so concluded, we nevertheless find that if the District has afforded or intends to afford Ms. Watts unrestricted access to all records responsive to her request, its disposition of that request will be substantively correct. The District has not advanced any arguments in support of full or partial nondisclosure of responsive records, and is therefore foreclosed from denying her access to those records. Assuming, for the sake of argument, that one or more statutory exception codified at KRS 61.878(1)(a) through (n) applied to the records, the District has effectively waived invocation of those exceptions by failing to assert them in its belated response to Ms. Watts' request.
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.