Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Lawrence Trageser appeals the Spencer County Ethics Commission's failure to respond to his December 7, 2015, request for "a report, response, ruling, or written conclusion created or produced by [the Chairman] of the Ethics Commission, involving two ethics complaints" that he filed in 2015. He also appeals the Commission's failure to respond to his December 21 complaint that the Commission "failed and continues to be derelict in its legal duties and responsibilities in posting its open records rules and regulations in a prominent public place." 1 Having received no response to either his December 7 request or his December 21 complaint, Mr. Trageser submitted two appeals to the Office of the Attorney General. Those appeals are consolidated for purposes of KRS 61.880(2) resolution because they arise from common facts.
Mr. Trageser addressed his December 7 request to the Spencer County Ethics Commission. Unable to locate the Commission's principal office or the statutorily required rules and regulations identifying that office or the Commission's official custodian of records, Mr. Trageser delivered his request to the Spencer County Deputy Judge/Executive. Because he received no response to the request, Mr. Trageser initiated the first of his appeals. In its response to the first appeal the Commission stated that, during a brief encounter in the post office, the former Commission chairman told Mr. Trageser "that the documents were filed at the Spencer County Clerk's office." In defense of its inaction, the Commission maintained that Mr. Trageser did not and "has still not submitted an open records request for this information to the Spencer County Clerk's office."
Responding to his second appeal, the Commission explained that it "has never had an office for possession of [its] records," and that it "may have never had any written records until Mr. Trageser filed the very first ethics complaints in the county." 2 Continuing, the Commission observed:
As a matter of law, any agency without an office, would have as their official custodian of records, the County Judge's office. The County Judge has arranged for a file cabinet that will hold Mr. Trageser's complaints and any minutes of Ethics Commission meetings going forward.
Unfortunately, the Commission followed their own ethics ordinance and filed copies of their findings to the complaints with the County Clerk's office. Since the Commission is in its infancy regarding meetings and complaints, the decision was made in the first meeting of the Ethics Commission to store written records in the County Judge's office.
The Commission did not explain, in either response, why this confusion prevented it from issuing a timely written response to Mr. Trageser's request for its records.
It is undisputed that the Commission is a public agency as defined in KRS 61.870(1) and that its records are public records, as defined in KRS 61.870(2), and that those records are governed by the Open Records Act, as defined in KRS 61.870(2). It is further undisputed that in 2015 Mr. Trageser submitted two ethics complaints to the Commission and thereafter requested access to the report, response, ruling, or written conclusion generated by the Commission "involving" his complaints. Finally, it is undisputed that Mr. Trageser addressed his request to the Commission Chairman, and that, unable to locate the Commission's principal office, he delivered the request to the Deputy County Judge/Executive. Because he did not receive a response to his request, Mr. Trageser filed a complaint with the Chairman of the Commission in which he questioned the Commission's noncompliance with KRS 61.876(1) and (2). That complaint also went unanswered.
KRS 61.880(1) governs public agency response to open records requests. It requires an agency's official custodian of records, or a person acting "under his authority," to respond in writing, and within three business days, to a request for public records. That response "constitute[s] final agency action." KRS 61.880(1). The Spencer County Ethics Commission's responses to the appeals arising from Mr. Trageser's request and complaint suggest that it has been largely, if not entirely, inactive since its creation. By its own account, the Commission has generated few, if any, records in the past and has made no clear provision for responding to open records requests.
These facts do not, however, excuse the Commission from complying with its statutory obligation to designate an official custodian of records in anticipation of open records requests and to ensure the issuance of timely written responses to those requests. KRS 61.870(5) and KRS 61.880(1). Nor do these facts excuse the Commission from adopting and posting, "in a prominent location accessible to the public," rules and regulations governing public access to its records that includes "[t]he principal office of the public agency and its office hours" and "[t]he title and address of the official custodian of the public agency's records." KRS 61.876(1)(a) and (b).
The Commission's response to Mr. Trageser's open records appeals focuses on the physical location of the Commission's records and not on the discharge of its duties under KRS 61.880(1) and KRS 61.876(1) and (2). The Commission did not discharge its statutory duties when the former chairman advised Mr. Trageser, in a casual conversation, that Commission records are maintained in the County Clerk's office. It remained the Commission's duty, pursuant to KRS 61.872(4), 3 to notify Mr. Trageser in writing, and within three business days, that the official custodian of its records was the Spencer County Clerk. The Commission did not do so. The Commission has since advised that its records have been moved to the County Judge's office but does not indicate if the County Judge acts as its official custodian of records. To date, the Commission has issued no written response to Mr. Trageser's open records request.
The Commission's failure to respond to Mr. Trageser's December 7 request constituted a violation of KRS 61.880(1). 4 The Commission's ongoing failure to adopt and post statutorily mandated rules and regulations, identifying its principal office for receipt of open records requests and the office's business hours, as well as the title and address of its designated official records custodian, constitutes a continuing violation of KRS 61.876(1) and (2).
Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 61.880(4) recognizes the right of a person who "feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection" to "complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied." Mr. Trageser's second appeal arises under this provision.
2 Given the Commission's uncertainty about the existence and/or location of records generated before Mr. Trageser's 2015 ethics complaints, the Commission may require assistance in developing a proper records management program from the Kentucky Department for Libraries and Archives. Pursuant to KRS 61.8715, we have referred this matter to KDLA for intervention as the Department deems appropriate.
3 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
4 As noted, even if the Commission did not act as its own records custodian, and therefore did not have custody or control of the public records requested, it should have notified Mr. Trageser of these facts and furnished him "with the name and location of the official custodian of . . . [its] public records." KRS 61.872(4).