Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Montgomery County Regional Jail violated the Open Records Act by failing to respond to Leonard Wilson's May 2, 2013, request for "[t]he documentation of the hire date and pay rate, hourly, of Bonnie Jones," and an answer to the question "Is Bonnie a family member or any relation to [Jailer] Eric Jones." Although the agency is not obligated to provide narrative answers to questions such as that posed by Mr. Wilson, its failure to respond to his May 2 request and to provide records verifying narrative answers voluntarily but belatedly furnished to Mr. Wilson constituted a violation of KRS 61.872(2) and KRS 61.880(1).
Upon receipt of this office's notification of Mr. Wilson's appeal, Jailer Eric Jones issued a letter to "whom it may concern" in which he stated:
In reference to Bonnie Jones's employment at the Montgomery County Regional Jail: Hire Date 6/1991, Rate of Pay $ 13.96 hourly and she is not a relative of Jailer Eric Jones.
There was no indication in the letter that a copy was transmitted to Mr. Wilson, and the letter contained no documents verifying this statement. Upon inquiry, Mr. Wilson continued to assert his right to responsive records. We find that he is, in fact, entitled to such records.
The Montgomery County Regional Jail violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Wilson's May 2 open records request. That statute provides, in part:
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.
The fact that a portion of Mr. Wilson's request was improperly framed as a request for information, rather than a request for records, did not relieve the agency of its statutory duty to promptly and properly respond by producing for inspection and/or copying records containing Ms. Jones's hire date and rate of pay within three business days. Its inaction constituted a violation of the Open Records Act.
So, too, did the agency's election to provide a narrative response rather than records containing the information sought. KRS 61.872(2) states that "[a]ny person shall have the right to inspect public records. " The act contemplates records access by means of onsite inspection of the records 1 or receipt of copies of the records through the mail. 2 In general, public agencies do not fulfill their statutory duty by providing narrative responses instead of records, and requesters must be afforded the opportunity to "free[ly] and open[ly] examin[e] public records . . . even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871.
Accordingly, we find that the Montgomery County Regional Jail violated the Open Records Act by failing to issue a timely written response to Mr. Wilson's request and by failing to provide him with public records documenting Bonnie Jones's date of hire and rate of pay. We appreciate the agency's belated attempts to comply with the act by providing a narrative response. This was especially commendable with regard to Mr. Wilson's question concerning the relationship between the jailer and Ms. Jones inasmuch as the jailer was not obligated to answer Mr. Wilson's question. 3 Nevertheless, the Montgomery County Regional Jail has not yet entirely fulfilled its statutory duty and will not do so until it provides Mr. Wilson with the records identified in his May 2, 2013, open records 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:
Leonard WilsonEric JonesKevin Clay Cockrell
Footnotes
Footnotes
1 KRS 61.872(3)(a).
2 KRS 61.872(3)(b).
3 See, e.g., 06-ORD-024 (enclosed) recognizing that public agencies are not obligated to honor requests for information as opposed to requests for records.