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 Floyd County Fiscal Court complied with the procedural requirements found at KRS 61.880(1) in responding to Christy Smith-Hatcher's June 24, and August 3, 2010, requests, but the responses were deficient because they did not reflect an adequate search for all records responsive to her requests.
On June 24, Ms. Smith-Hatcher submitted a written request to the Floyd County Judge/Executive to inspect or obtain copies of "all documents relating to any application or request for the road work that was done at 507 Dodson Branch on the property of Lance Coleman in Floyd County." Judge Robert D. Marshall promptly responded to her request, advising her that "no work was done on the property of Lance Coleman" and that "all work that was done during May 2010 by the Floyd County Road Department was done on the country road known as Dodson Branch and the adjacent right-of-ways in the Floyd County Road System." Judge Marshall indicated that "several residents had given verbal notification . . . of the need for road maintenance."
On August 3, Ms. Smith-Hatcher expanded her request, asking to inspect or obtain copies of "all work that was done during May 2010 by the Floyd County Road Department on the county road known as Dodson Branch and the adjacent right-of-ways in the Floyd County Road System . . . [including, but not limited to,] a map depicting the county road right-of-way on Dodson Branch, the center of the right-of-way, and the width of the right-of-way from the center line." Again, Judge Marshall promptly responded to her request by suggesting that she "visit the site at Dodson Branch," and indicating that he was "unaware of the existence of any work orders regarding maintenance done in this area by the road department." Judge Marshall suggested that Ms. Smith-Hatcher contact Magistrate John Goble, in whose district the work was done, and Road Supervisor Mike Jarrell to arrange for inspection of maps.
On appeal, Ms. Smith-Hatcher, a paralegal in a Pikeville, Kentucky law firm, complained that to date she has received no responsive records. In a supplemental response, Judge Marshall reiterated that Magistrate Goble received verbal requests for road maintenance on Dodson Branch, but that he (Judge Marshall) was "unaware of any written work orders." He explained that public roads are regularly repaired without a written work order. Judge Marshall acknowledged that he did not understand how Ms. Smith-Hatcher's second request differed from her first, but again stated that he was "unaware of the existence of any written work order. " He emphasized that he did not deny her request for a road map, but directed her to the Road Department where maps are located.
Ms. Smith-Hatcher's requests were addressed to Judge Marshall as records custodian for his office's records as well as for county government records generally. The Kentucky Open Records Act contemplates the appointment of an "official custodian of records" at KRS 61.872, 61.876, and 61.880. 07-ORD-001. That term is defined at KRS 61.870(5) as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care, and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" It is the official custodian of records, or someone operating "under his authority," who is responsible for issuing the agency's final response to an open records request. Judge Marshall is himself a public agency pursuant to KRS 61.870(1)(a). 1 He is also the chief administrative officer of the Floyd County Fiscal Court, a public agency pursuant to KRS 61.870(1)(d). 2 Because Ms. Smith-Hatcher requested access to all records relating to county road work, and not just records of the County Judge/Executive relating to county road work, we treat each of his responses as one issued as final action on behalf of his office and the Floyd County Fiscal Court.
Judge Marshall fully discharged his procedural duties under the Open Records Act by issuing two timely written responses to Ms. Smith-Hatcher's requests. He did not, however, conduct a search for responsive records "using methods that could reasonably be expected to produce the records requested." 95-ORD-96; 99-ORD-70; 00-ORD-185; 04-ORD-050; 08-ORD-056; 09-ORD-180. Based on his response to each of Ms. Smith-Hatcher's requests, we understand that Judge Marshall relied almost entirely on his personal knowledge of responsive records rather than conducting a search that could reasonably be expected to produce records relating to road work on Dodson Branch. 3 Moreover, he responded to her requests as if they were requests for written complaints and work orders only. Ms. Smith-Hatcher's second request included records relating to all work done on Dodson Branch and adjacent right-of-ways, and might have included, for example, telephone messages, emails, letters, memoranda, road crew time records, supply requisitions, and notations of repairs made on Dodson's Branch in 2010. While his efforts were commendable, they fell short of the statutory requirements found at KRS 61.880(1)(a). Absent a search of all county offices that are likely to maintain records relating to road work that confirms the existence or nonexistence of responsive records, his invitation to Ms. Smith-Hatcher to conduct an on-site inspection improperly shifted the burden to her to locate responsive records. We therefore find that the Floyd County Fiscal Court's response to these requests is deficient because it was not based on an adequate search of county records.
Ms. Smith-Hatcher does not object to conducting on-site inspection of the map to which she requested access, but asks for additional information as to the location of the Floyd County Road Department, and, in particular, Supervisor Mike Jarrell. Judge Marshall provided her with Mr. Jarrell's telephone number in his August 5 response to her August 3 request. Again, Judge Marshall has provided ample, but not complete, information. KRS 61.872(4) states that "[i]f the person to whom the application is directed does not have custody or control of the public records requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " (Emphasis added.) We find that the Fiscal Court must provide her with the address of the Floyd County Road Department's Office, and will not have fully discharged its duties under KRS 61.872(4) until it has done so.
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.
Christy Smith-HatcherRobert D. MarshallKeith Bartley
Footnotes
Footnotes
1 KRS 61.870(1)(a) defines the term "public agency" as "[e]very state or local government officer."
2 KRS 61.870(1)(d) defines the term "public agency" as "[e]very county and city governing body . . . ."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 Judge Marshall stated, for example, that "it [was his] understanding" that there were no work orders and that he was " unaware of the existence" of any work orders.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -