Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that because Jaron S. Teague did not submit his July 13, 2009, request for records to the Louisville Metro Public Defender, but instead submitted that request to Attorney General Jack Conway, "to distribute to all parties of interest," no error can be assigned to the Public Defender for his disposition of that request. Because his request did not conform to KRS 61.880(1) and his appeal did not conform to KRS 61.880(2), no consideration can be given to Mr. Teague's appeal per 40 KAR 1:030 Section 1. 1
Pursuant to KRS 61.880(1):
If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. 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.
Mr. Teague misconstrues the role of this office as it relates to his request and appeal. Pursuant to KRS 61.872(2), it is incumbent on him, and not the Attorney General, to submit his written request to the agency or agencies from which he seeks records. 2 If that request is denied or he receives no response, it is incumbent on him to initiate an appeal to the Attorney General by submitting a copy of his request and a copy of the agency's denial, if the agency issued a denial, to this office. KRS 61.880(2). 3
Accordingly, this office has no authority to act, and will not act, as an intermediary between Mr. Teague and any other public agencies, including the Louisville Metro Public Defender, to "compel [the Public Defender or any other public agency] to turn over free of charge one certified copy of all requested documents for [his] defense." If, and/or when, Mr. Teague complies with KRS 61.872(2) by mailing, faxing, or hand-delivering his written request for records of the Louisville Metro Public Defender to the Louisville Metro Public Defender, obtains an adverse response or no response at all, and initiates an appeal to this office by sending us a copy of his written request and a copy of the Louisville Metro Public Defender's response, or, if he receives no response, a letter so advising us, this office will proceed to an adjudication of his open records dispute per KRS 61.880(2). Until such time, we will take no action on this unperfected complaint.
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.
Footnotes
Footnotes
1 40 KAR 1:030 Section 1 thus provides:
The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2) requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial.
2 KRS 61.872(2) thus provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 KRS 61.880(2) provides:
(a) If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.