Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Crittenden County Fiscal Court violated the Open Records Act in the disposition of Robert P. Moore's July 2, 2009, request for eight categories of records related to Crittenden County's solid waste management plan. For the reasons that follow, we find that the Fiscal Court committed both procedural and substantive violations of the Act in the disposition of Mr. Moore's request.
The facts giving rise to this appeal are as follows:
7/2/09 - Mr. Moore submits his requests to "inspect [] and possibl[y] copy[]" records relating to solid waste management to Crittenden County Judge/Executive Fred Brown.
7/13/09 - Crittenden County Treasurer Sue Padgett notifies Mr. Moore that "[i]t will take a few weeks to get everything together as we are at the end of our fiscal year, " but indicates that he "can call and come to view what we have."
8/12/09 - Mr. Moore inquires into the status of his request, by letter, declaring that the Fiscal Court has "had adequate time to get these records ready for inspection. "
8/14/09 - Ms. Padgett responds by letter, identifying the Fiscal Court's hours of operation and asking that he "call . . . to make an appointment" to inspect or possibly copy agency records. She notes that there is a 25 cents per page copying fee.
8/31/09 - Mr. Moore contacts Ms. Padgett and Judge Brown and is advised that responsive records are located in various offices. He is left with the impression "that they have not taken any steps to retrieve and put together the records to make available for inspection. " In response to Mr. Moore's objections about excessive fees, Judge Brown agrees to reduce the copying fee to ten cents per page.
9/1/09 - Mr. Moore initiates this appeal.
9/15/09 - Crittenden County Fiscal Court responds, through County Attorney Rebecca J. Johnson, that Mr. Moore was not denied access and that the Fiscal Court is, "in fact, waiting for [him] to inspect the records." Nevertheless, she advises that the Fiscal Court has photocopied and mailed the "documents requested" to Mr. Moore with the exception of the minutes of Fiscal Court meetings. It is her position that "[i]t would be unduly burdensome for the County Clerk to attempt to review all the recorded minutes, photocopy, and mail same" to him.
9/15/09 - Ms. Johnson corresponds with Mr. Moore, expressing the belief that "the County's response was clear that the documentation requested was available to you for inspection. " She nevertheless provides him with copies of records, excluding meeting minutes. Ms. Johnson advises Mr. Moore where the minutes are located and the business hours the minutes are available for inspection. She requests payment of a $ 26.10 copying and postage fee.
9/18/09 - Mr. Moore mails Ms. Johnson a check for copying and postage fees, noting that it was always his intention to conduct onsite inspection. In addition, he notes that the copies produced are, in some instances, duplicative ("8 or 10 copies of the same ordinance"). He questions the paucity of records produced for certain years, requesting that the Fiscal Court advise him if there are no records for those years. Further, he asks that the Fiscal Court advise him if there are or are not "written established criteria" for the granting of a waiver for a nonfranchise solid waste collector or transporter.
10/5/09 - The undersigned Assistant Attorney General contacts Ms. Johnson by telephone. She acknowledges that the Fiscal Court has not responded to Mr. Moore's letter.
10/6/09 - Mr. Moore requests that this office proceed to an adjudication of this matter.
Our review of these facts discloses the following violations of the Open Records Act.
KRS 61.880(1)
The Crittenden County Fiscal Court violated KRS 61.880(1) in failing to issue a written response to Mr. Moore's request within three business days of receipt. 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 offers no explanation for its failure to properly respond, and we therefore find no mitigating circumstances.
KRS 61.872(3)(a)
The Crittenden County Fiscal Court violated KRS 61.872(3)(a) by asking that Mr. Moore call in advance of coming to its offices to inspect responsive records. KRS 61.872(3)(a) states that "[a] person may inspect the public records . . . [d]uring the regular office hours of the public agency. " Any attempt to restrict hours of access is prohibited. Although a requester may be asked to call in advance of his or her arrival, or may do so as a matter of courtesy, his or her right of inspection cannot be conditioned on making an appointment.
KRS 61.872(5)
The Crittenden County Fiscal Court violated the Open Records Act by extending the deadline for production of public records beyond the three business days contemplated by KRS 61.880(1) without explanation. KRS 61.872(5) speaks directly to this issue providing:
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.
The Fiscal Court advised Mr. Moore that it would "take a few weeks to get everything together as we are at the end of our fiscal year. " This statement did not satisfy the requirement of "a detailed explanation of the cause for delay." Nor did the Fiscal Court tell Mr. Moore the "earliest date on which the public records [would] be available for inspection. " Its failure to do so constituted a violation of KRS 61.872(5).
KRS 61.874(3)
The Crittenden County Fiscal Court violated KRS 61.874(3) by attempting to impose unreasonable fees for copies of nonexempt records requested for use for a noncommercial purpose. The Fiscal Court subsequently acknowledged its error, and, referencing the correct legal authorities, reduced its copying fee to ten cents per page.
KRS 61.872(1) and 61.876
The Crittenden County Fiscal Court violated KRS 61.872(1) by failing to make "suitable facilities" available for the exercise of Mr. Moore's right of inspection and KRS 61.876(1) by failing to facilitate "full access to public records. " In his August 31 conversation with Judge Brown, Mr. Moore was advised that some of the records he sought "hadn't been retrieved as of that date," some were located in the Clerk's Office, some were located in the Judge's office, and some were in the basement. Based on this office's analysis in 09-ORD-154, a copy of which is attached hereto and incorporated by reference, we find that "to insure efficacious and meaningful inspection, it is incumbent on the County Judge, or an employee to whom he delegates the task, to segregate any responsive records for [the applicant's] inspection . . . rather than set him loose in the county's various records repositories to conduct his own fishing expedition for responsive records." 09-ORD-154, p. 6, 7.
Although the Fiscal Court partially did so before issuing its September 15 letter, the task is still incomplete. It remains for the Fiscal Court to locate any additional responsive records relating to those years for which "scant" records were produced. If no additional records exist, it is incumbent on the Fiscal Court to so advise Mr. Moore. See, e.g., 07-ORD-002 (enclosed). By the same token, it is incumbent on the Fiscal Court to advise Mr. Moore whether "written established criteria" exist, other than those which might be extrapolated from minutes of Fiscal Court meetings, for the granting of a waiver for a nonfranchise solid waste collector or transporter. Until the Crittenden County Fiscal Court has done so, its duties under the Open Records Act will not be fully discharged.
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.