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 the City of Mt. Vernon violated the Open Records Act in failing to respond to Michael Sheliga's April 30, 2010, request for copies of records "indicating what occurred during the [April 19, 2010] secret meeting . . .[, including] minutes that city clerk Jeanette Robinson took" and records "indicating any payment the city has made to the former mayor in regard to [her vacation pay]," and his undated request to inspect "receipts for general fund expenditures for March, 2010" and "records about a request for city services made by an alleged party, relating to [Mr. Sheliga] speaking with office staff on . . . Tuesday, April 20th," as well as the city hall visitor log for April 20 and "the record of water or sewage bill transactions on that day." KRS 61.880(1) is dispositive of this issue. 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.
Because the city elected to ignore Mr. Sheliga's request, we find that it violated KRS 61.880(1).
Upon receipt of notification of Mr. Sheliga's appeals, Mayor Gary R. Cromer advised Mr. Sheliga:
In response to your request for open records of April 30, 2010 you stated in bold type do NOT copy yet. I was awaiting for an additional response from you, you may inspect the general fund expenditures for March 2010 at any time during normal business hours. As for your request about city services there is no record.
Mayor Cromer provided the Attorney General with a copy of this response. It, too, was deficient insofar as it shifted the burden to Mr. Sheliga to submit an "additional response" to inspect the general expenditures he originally sought in his undated request and failed to address his request for copies of records documenting what occurred during an illegal closed session conducted at its April 19, 2010, meeting, 1 as well as records of payments to the former mayor for her vacation time, the city hall visitor log for April 20, and the "record of water and sewage bill transactions" on April 20.
Mr. Sheliga properly submitted written requests for the records he wished to access, by on-site inspection or receipt of copies through the mail, when he described those records, signed his name, and printed his name legibly on them. KRS 61.872(2). He had no further obligation under the Open Records Act. The City of Mt. Vernon, on the other hand, was statutorily obligated to respond in writing to his requests within three business days by notifying him that he could conduct an immediate onsite inspection of any existing, nonexempt records responsive to his requests, or obtain copies of those records by mail upon prepayment of reasonable copying and postage charges. KRS 61.872(3). If for any reason, the City could not honor his requests, it was statutorily obligated to notify him, in writing, within three business days, that his requests were denied and "include a statement of the specific exception authorizing the withholding of the record[s] and a brief explanation of how the exception applies to the record[s] withheld. " KRS 61.880(1). Instead, the City ignored his requests prompting him to initiate this appeal.
Based on Mayor Cromer's belated response to Mr. Sheliga's request, we trust that records reflecting general fund expenditures are available for inspection. Although he does not describe the search he conducted to locate "records about a request for city services made by an alleged party, relating to [his] speaking with office staff on . . . Tuesday, April 20th," Mayor Cromer denies the existence of any such record. Mr. Sheliga, himself, suggests two records which might contain the information sought, to wit, the April 20 city hall visitor sign-in log and the April 20 water and sewer billing transaction records. Having advanced no argument in support of denial of Mr. Sheliga's request for the visitors log, water and sewage payment records, records of the April 19 illegal closed session, and records of payments to the former mayor for her vacation time, we find that the City of Mt. Vernon failed to satisfy its statutory burden of proof in implicitly denying these requests. KRS 61.880(2)(c) (declaring that "[t]he burden of proof in sustaining the action shall rest with the agency . . ."). We therefore conclude that the City's inaction, or improper reaction, to Mr. Sheliga's requests and appeal constituted a violation of the Open Records Act.
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.
Michael SheligaGary Cromer, MayorJerry Cox, P.S.C.
Footnotes
Footnotes
1 See 10-OMD-100 and 10-OMD-101 (holding that the Mt. Vernon City Council violated KRS 61.815(1)(a) and KRS 61.815(1)(c) in conducting a closed session at the April 19 meeting, and KRS 61.810(1)(f) in discussing general personnel matters during the closed session) .