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 because legal authority exists for the proposition that an open record request need not be identified as such, the Hardin County Attorney erred in failing to respond to that portion of Millard R. Boggs' April 4, 2012, complaint about an assistant county attorney that constituted a valid open records request. The County Attorney's error was, however, mitigated by the fact that Mr. Boggs' request was incidental to the primary purpose of his April 4 complaint and therefore not easily recognizable as a records request.
In his April 4, 2012, letter to Hardin County Attorney Jennifer B. Oldham, Mr. Boggs responded to Ms. Oldham's March 29 reply to his March 22 complaint concerning one of her assistants. In the fourth full paragraph of the April 4 letter, he indicated that he:
would greatly appreciate it if you would provide me with a copy of the work ethics code, behavior expectations, and responsibilities as it pertains to the Hardin County Attorney's Office.
Having received no response to his April 4 letter, he submitted a request to this office for "an inquiry . . . regarding misuse of resources and position at [the] Hardin County Attorney's Office," describing the incident that gave rise to his concerns about Ms. Oldham's assistant, and noting, near the conclusion of his May 17 letter, that his request for "a copy of the ethics code as it pertains to the Hardin County Attorney's Office" went unanswered.
In correspondence directed to this office after Mr. Boggs' submitted his May 17 letter, Ms. Oldham explained that his April 14 letter "generally complain[ed] about what he considered to be my deficient response to his complaint" about her assistant. She observed:
He did not make reference to the Open Records statute and frankly, I did not perceive it as a genuine request for information. Therefore, I did not analyze his request in light of the Open Records law and since I considered the matter over on my part, I did not respond to Mr. Boggs. He indicated that he "would greatly appreciate if I would provide him a copy "of the work ethics code, behavior expectations, and responsibilities as it pertains to my office."
There are no such documents that satisfy his request.
In closing, she reiterated that she did not "consider every uninformed casual request to be an Open Records request," but asked for guidance on this issue and agreed to inform Mr. Boggs that her office maintains no documents that satisfy his request if so directed. In the interest of fully discharging her duties under KRS 61.880(1), we suggest that she do so.
Pursuant to KRS 61.880(2), the Attorney General is statutorily charged with reviewing the record on appeal and issuing a written decision stating whether the Hardin County Attorney violated the Open Records Act in failing to respond to Mr. Boggs' request. We confine our decision to this question and find that she did. Our decision turns on the analysis found in 04-ORD-048, a copy of which is attached hereto, and is echoed in other decisions of this office as well as an unpublished Court of Appeals opinion, George William Sykes v. James Kemper , No. 2000-CA-000714 (Ky. App. 2001), also enclosed, recognizing that the failure to issue a timely response to an open records request was not excused by the requester's failure to identify the request as a request made under the Open Records Act. 1 See also 99-ORD-148; 01-ORD-168; 06-ORD-197.
In each of these appeals the records request, although not expressly identified as an "open records" request, was the primary focus of the correspondence directed to the agency and not incidental thereto. Here, Mr. Boggs' request for a copy of the Hardin County Attorney's "work ethics code" is collateral to his critique of her disposition of his complaint about her assistant. Thus, while Ms. Oldham erred in failing to respond to his records request, that error was mitigated by the fact that his request was "buried," as it were, in the text of his critique. She is, however, still obligated to issue a written response to Mr. Boggs, per KRS 61.880(1), advising him that she maintains no work ethics code, and thus no record, responsive to his request.
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:Millard R. BoggsJennifer B. Oldham
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