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 Bell County Judge/Executive 1 violated KRS 61.880(1) 2 by failing to respond to Jureen Hendrickson's July 1, 2012, request for a copy of "the letter to [the County Judge's] office from Randall Bird, Sky Energy Group, LLC, regarding the proposed Elk Ridge power plant project . . . referenced in a Middlesboro Daily News article on the power plant dated February 29, 2012." Mr. Hendrickson, who indicated he had submitted an identical request ten days earlier, 3 received no response to either request. This office transmitted notification of receipt of his open records appeal to the Judge/Executive on July 6, 2012, but the Judge again elected not to respond. Under these circumstances, the Attorney General must conclude that the Bell County Judge/Executive violated the procedural requirements of the Open Records Act codified at KRS 61.880(1). Accord, 00-OMD-124; 01-ORD-201; 06-ORD-123; 11-ORD-078 (enclosed).
In addition, we must conclude that because the Bell County Judge/Executive failed to advance any legal argument justifying nondisclosure of the requested letter, he violated the substantive requirement of the Open Records Act as well. KRS 61.872(1) mandates that "all public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884 . . . ." The County Judge offers no legal justification for his apparent decision to withhold the letter, and it is he who is assigned the burden of proof. KRS 61.880(2)(c). 4 Having failed to meet the statutorily assigned burden, we find that the Bell County Judge/Executive committed a substantive, as well as a procedural, violation of the Open Records Act. See authorities cited above.
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:
Jureen HendricksonAlbey Brock Neil Ward
Footnotes
Footnotes
1 The Bell County Judge/Executive is a "public agency" pursuant to KRS 61.870(1)(a), defining that term to include "[e]very state or local government officer." Records of his office are therefore governed by the Open Records Act.
2 KRS 61.880(1) 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.
3 A copy of the earlier request was not included in the appeal. The County Judge did not, however, refute Mr. Hendrickson's statement that he submitted an identical request ten days earlier.
4 KRS 61.880(2)(c) thus provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency , and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)