Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Oldham County Engineer violated KRS 61.880(1) in failing to respond in writing, and within three business days, to a series of requests submitted to her office by Judy Ponder. The dates of those unanswered requests, and the records sought, are as follows:
. June 9, 2011 - Ms. Ponder requests copies of the County Engineer's "written report and any notices or communications regarding [her request that the engineer investigate the impact of tree removal at Northwood East Lot 13], and any expert reports [the engineer] obtained";
. June 16, 2011 -- Ms. Ponder requests a copy of "the storm water permit file for [Northwood East Lot 13]";
. July 25, 2011 -- Ms. Ponder requests copies of "all inspection schedules and findings, and all other documentation (letters, memos, etc.) for Lot 13, Northwood East";
. August 2, 2011 -- Ms. Ponder requests copies of the engineer's "inspection and action reports and all related documentation regarding the right of way, creek drainage, and 2011 [installation of a pole barn] at Northwood East Subdivision at Lot 13."
Ms. Ponder received no written response to these requests, prompting her to initiate this appeal.
KRS 61.880(1) requires the Oldham County Engineer to issue a timely written response to any open records request. 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.
To her credit, the County Engineer acknowledged this legal obligation by providing Ms. Ponder with a copy of the Northwood East Subdivision's 1987 drainage plan in response to an April 27, 2011, request. The engineer's legal obligations did not, however, end there. She was legally obligated to respond, in writing, and within three business days, to Ms. Ponder's subsequent requests. She apparently chose not to do so.
In addition, the Oldham County Engineer elected to ignore this office's October 4, 2011, notification of receipt of Ms. Ponder's open records appeal. Because her office is assigned the burden of proof in sustaining her actions relative to Ms. Ponder's request, 1 and she has made no effort to meet that burden, we must resolve this appeal against her. The records to which Ms. Ponder seeks access may or may not exist. Given the engineer's silence, we simply do not know. The records may or may not enjoy protection from public inspection under one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Again, we simply do not know. It is incumbent on the Oldham County Engineer to conduct a search for, and make available to Ms. Ponder, all nonexempt responsive records. If her search for responsive records yields no results, or if the records are available elsewhere, the Oldham County Engineer must immediately notify Ms. Ponder, in writing, that she cannot fulfill her request and advise her what, if any, agency can. Continued inaction is not a legal option.
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.
Distributed to:
Judy PonderElizabeth Stuber JonesJohn K. Carter
Footnotes
Footnotes