Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Darrell W. Peters appeals the Hyden--Leslie County Water District's and the Office of the Leslie County Judge/Executive's disposition of his requests for records relating to coal severance taxes allocated to the district or to the county "for construction of water lines and pumping stations throughout Leslie County." Because his appeals arise from a common set of facts they are consolidated for purposes of review and decision. KRS 61.880(2). Mr. Peters submitted his request to the Office of the County Judge/Executive after having been orally advised by Water District manager, Lehman Howard, to do so. This conversation, the contents of which the District does not dispute, followed a series of unanswered open records requests Mr. Peters submitted to the Water District over a period extending from February 2015 to November 2015, which he documents by submission to this office of the requests and receipts of certified mail delivery. The District does not dispute receipt of these requests but presents no evidence that it responded to them in a timely fashion. Conversely, Mr. Peters presents evidence that the District first responded to his multiple requests on September 29, 2015, advising him that "all records" about which he inquired were "located in the Water District Office," but failing to advise him that this excluded records relating to coal severance funds used in the construction of Leslie County water lines and pumping stations that he expressly requested. The Office of the Leslie County Judge/Executive responded to Mr. Peters' November request in April 2016 by advising him that records relating to coal severance tax appropriated to the Leslie County Water Line Extension Projects are "no longer available," that, after audit, the records are "no longer ke[pt]," and that he should "contact the Hyden-Leslie County Water District for more information . . . ." Neither agency advised Mr. Peters that the records were in the possession of the Department for Local Government.
Based on these facts, we conclude that both the Water District's and the County Judge/Executive's responses to Mr. Peters' requests violated KRS 61.880(1). That statute 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.
Although the persistent noncompliance of the Water District makes it the greater offender, both failed to respond to Mr. Peters' request, in writing, and within three business days, of submission of those requests. See 09-ORD-060 (determining that agency violated KRS 61.880(1) by failing to respond to records request whose delivery was verified by certified mail receipt.) While it is apparent that Mr. Peters was afforded access to some Water District records as these events unfolded, there is no evidence in the record that he was afforded access to records relating to coal severance funds appropriated for water line extension projects. Despite having been directed by the Water District to submit his request to the County Judge/Executive's office and by the County Judge/Executive's office to submit his request to the Water District, each disclaimed possession of responsive records documenting severance tax appropriations for which the Legislature has created reporting requirements at KRS 42.450 et seq. This includes KRS 42.460 which requires counties to submit a copy of the county's mandated independent audit and certification of compliance, verifying that the coal severance funds were "expended for the purpose intended," to the Department for Local Government. 1 We have confirmed with representatives of the Department for Local Government that the Department maintains a large number of documents for each funded project.
KRS 61.872(4) requires public agencies to which open records requests are misdirected to so "notify the applicant" and to "furnish the name and location of the official custodian" of the agency in possession of responsive records. Possessing no records responsive to Mr. Peters' request, the Water District and the Office of the County Judge/Executive were statutorily obligated to furnish him with the name and location of the official custodian of records for the Department for Local Government. See, e.g., 12-ORD-163 (determining that agency violated KRS 61.872(4) by failing to furnish requester with the name and location of the agency in whose custody the requested records resided). Neither agency did so.
It should be noted that our research also yielded a 2013 press release from the Kentucky Department for Natural Resource's Division of Abandoned Mines, copy enclosed, announcing the "start of construction for a Leslie County Multi-Site AML water supply project," operated by the Hyden-Leslie County Water District. Continuing, the press release states that the construction contract was awarded to G & W Construction of Morehead, Kentucky, and that engineering services would be provided by Sisler and Maggard Engineering of Lexington, Kentucky. A response to Mr. Peters' appeal was mailed to this office on Sisler-Maggard Engineering letterhead, apparently on behalf of the Water District. In it, the project engineer for Sisler-Maggard describes the availability of documents at the Water District Office as well as conversations and meetings with Mr. Peters, but makes no reference to coal severance funds allocated to the Water District for the project. These ambiguities in the sources of the funds, the location of records relating to the funds, and the identity of the official custodian of those records should have been resolved in timely written responses to Mr. Peters' requests. We therefore find that Hyden-Leslie County Water District and the Office of the Leslie County Judge/Executive violated KRS 61.880(1) and KRS 61.872(4) in the disposition of Mr. Peters' open records requests.
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.
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