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 although its original response was procedurally deficient, Oldham County Planning & Development Services did not otherwise violate KRS 61.880(1), or any other provision of the Open Records Act, in the disposition of Judy Ponder's August 2, 2011, request for copies of:
inspection and action reports and all related documentation . . . regarding the right of way, creek drainage, and 2011 project of installing a pole barn in Northwood East Subdivision at Lot 13 . . . .
Ms. Ponder asked that the agency conduct a search for records located in Director James P. Urban's office and in the offices of Mr. Urban's subordinates.
In a belated response emailed to Ms. Ponder on September 27, 2011, Mr. Urban reminded her that he had "given [her his] verbal answer to this [request] when [she was] in [the Planning and Development Services'] office." He reiterated that his office "copied [her] on every file [she] requested and . . . offered [her] a space to examine any and all files and immediately copy any documents [she] desired." Ms. Ponder replied to Mr. Urban's email by posing a series of questions concerning the existence, status, and/or location of the "nuisance complaint investigation." On appeal, Ms. Ponder asserted that Mr. Urban's September 27 email response was untimely and "did not include a legitimate written reply." It was her position that Mr. Urban did not fully discharge his statutory obligation by affording her access to all records in the agency's custody without expressly stating whether the nuisance complaint investigation she requested exists.
In supplemental correspondence directed to this office, Mr. Urban disputed these allegations. He maintained that, notwithstanding the fact she "continues to burden [his] office with excessive requests, inquisitions, challenges, and accusations," he has properly responded to Ms. Ponder's requests. Continuing, Mr. Urban observed:
Ms. Ponder filed a nuisance petition against her neighbor . . . which [was] investigated by [this] office.
. . .
All permit requirements as well as construction requirements have been met by the applicant; therefore, the nuisance petition was disregarded. This information has been communicated to Ms. Ponder times.
In support, Mr. Urban attached a series of email communications with Ms. Ponder in which they discussed Lot 13 of Northwood East Subdivision. These communications, coupled with Mr. Urban's unambiguous statement that Ms. Ponder's "nuisance petition was disregarded, " resolve any lingering doubt as to the status of the nuisance petition investigation. While there are no equally unambiguous statements in the email exchanges, we do not agree that Mr. Urban failed to "include a legitimate written replay" to Ms. Ponder's request. Although he failed to issue a written response in a timely fashion, Mr. Urban agreed to make available for inspection and copying all records related to Lot 13 of Northwood East Subdivision. In so doing, he discharged his statutory duties.
Oldham County Planning & Development Services violated the Open Records Act by failing to issue a written response to Ms. Ponder's August 2, 2011, request within three business days. Specifically, Mr. Urban's written response, issued nearly two months after receipt of her request, violated KRS 61.880(1). The agency did not violate the Open Records Act by extending an invitation to Ms. Ponder to conduct an on-site inspection of all records in its custody relating to the property. KRS 61.872(3)(a) and (b) contemplate on-site inspection of public records by applicants who reside or have their principal place of business in the county where the records are located. This is particularly true where the applicant fails to identify the requested records "precisely."
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). Given the broad scope of her August 2 request, we assign no error to Planning & Development Services for requiring Ms. Ponder, a resident of Oldham County, to review responsive records in the agency's offices. The nonexistence of records relating to her nuisance petition would have confirmed her suspicion that Planning & Development Services dismissed her nuisance complaint.
Both Ms. Ponder and Mr. Urban request that this office take additional action in this matter. Ms. Ponder seeks a declaration that prior open records decisions in which she was a party were resolved in her favor. Additionally, she requests a determination that an email from Mr. Urban dated October 10, 2011, and directing her to submit her requests to him so that he can maintain a log of incoming correspondence, constitutes retaliation for her open records appeals. Mr. Urban asks that we examine correspondence from and to Ms. Ponder to confirm "the ill effects of Ms. Ponder's actions on the ability of [his] office to carry on with [its] normal functions." We decline these requests because the Open Records Act limits our role in open records disputes to issuing decisions stating whether an agency violated the Act. KRS 61.880(2). We have no authority to revisit past decisions, to comment on a proposed open records policy that has yielded no actual controversy, or to approve prospective denial of open records requests based on the applicant's alleged intent to disrupt the agency's essential functions. We will address the latter issues if they are presented to us in subsequent open records appeals.
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 PonderJames P. UrbanJohn K. Carter