Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Southern Water District violated the Open Records Act by failing to respond to Willie Meade's January 13, and January 14, 2013, requests for records and information relating to the district and to Mr. Meade's account. We find that the district's inaction constituted a violation of the procedural and substantive requirements of the Act.
On January 13 Mr. Meade requested access to records relating to district policies on, and incidences of, stolen meters. One day later Mr. Meade requested access to records relating to his own account, including his billing records and the user agreement he signed when his account was activated. Having received no response to either request, Mr. Meade initiated this appeal. On February 1, 2013, the Attorney General issued notification of Mr. Meade's appeal to the district, pursuant to 40 KAR 1:030 Section 2, advising the district that it could respond in writing to Mr. Meade's allegations. We received no response to our notification.
Because no claim is advanced that Southern Water District is not a public agency for open records purposes, we must assume that it is. State Auditor Adam Edelen's "Report on Special Districts," issued in November 2012 identifies Southern Water District as a special district located in Floyd County. 1 As such, it is subject to the Open Records Act pursuant to KRS 61.870(1)(d) as a "special district board." 2 It is also a "state or local government agency . . . created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act," namely, KRS 74.010 and 74.012 3 and the corresponding local enactment. It is therefore subject to the Open Records Act as a "public agency" within the meaning of KRS 61.870(1)(f). 4 Southern Water District is accountable to the public through its records. This position finds ample support in a series of open records and open meetings decisions issued by the Attorney General. 5 In the absence of any defense for the district's inaction, we find that it violated the Open Records Act by failing to respond to Mr. Meade's request and by failing to afford him access to records for which no statutory exemption was claimed.
Southern Water District violated KRS 61.880(1) by ignoring Mr. Meade's open records requests. That statute states that, upon receipt of an open records request, a public agency must:
determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after receipt of any such request, . . . whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision.
If the public agency denies all or any portion of the request, the agency must "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." KRS 61.880(1). Responsibility for the discharge of this duty rests with the agency's official custodian 6 or an individual acting under the custodian's authority. KRS 61.880(1). Agency inaction is not an option.
Edmondson v. Alig, 926 S.W.2d 586, 858 (Ky. App. 1996) (recognizing that "[t]he language of the statute directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . ."); accord, 07-ORD-014.
Southern Water District presents no justification for its failure to discharge its statutory duty under the Open Records Act. With respect to each of Mr. Meade's requests, the district was afforded not one, but two, opportunities to comply with KRS 61.880(1): by responding in writing, and within three business days, to Mr. Meade's requests and by responding to his requests upon receipt of this office's notification of Mr. Meade's open records appeal. As noted, the Attorney General mailed that notification on February 1, 2013, pursuant to 40 KAR 1:030 Section 2, affording the district the opportunity to "respond to this appeal." We received no response to this notification. Nor have we been advised that the district took any post-appeal action on Mr. Meade's requests.
Having provided no response to his open records requests, and thus no legal basis for denying Mr. Meade access to the requested records, Southern Water District is in clear violation of the Open Records Act. The corollary of this proposition is that the district must disclose the requested records to Mr. Meade or advance a legally recognized basis for denying him access. Alternatively, the district may appeal this decision to the appropriate circuit court within thirty days of its receipt. KRS 61.880(5)(a). Continued inaction is not a legally viable option. The district's duty under the law is clear.
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:
Willie MeadeHubert HalbertKeith Bartley
Footnotes
Footnotes
1 http://apps.auditor.ky.gov/public/theregistry/cai.html
2 KRS 61.870(1)(d) defines the term "public agency" as "[e]very county and city governing body, council, school district board, special district board , and municipal corporation[.]" (Emphasis added.)
3 KRS 74.010 authorizes fiscal courts to "create a water district in accordance with the procedures of KRS 65.810," and KRS 74.012 establishes the mechanisms for creation.
4 KRS 61.870(1)(f) defines the term "public agency" as "[e]very state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act[.]"
5 See, e.g., OAG 78-395 (recognizing that "[a] water district organized under KRS 74.012 is not a private nonprofit corporation and is therefore a public agency" subject to the provisions of both the Open Meetings and Open Records laws); OAG 91-48 (North Marshall Water District "is a public agency, created under authority of Chapter 74, and is therefore subject to the Open Records Act"); 03-ORD-001 (Crittenden/Livingston County Water District); 04-ORD-026 (Ohio County Water District); 08-ORD-147 (Western Pulaski County Water District); compare 09-OMD-081 (Eastern Rockcastle Water Association).
6 Official custodian" 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[.]"