Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
City of Worthington Hills' Commissioner Robert A. Stonum appeals the city's disposition of his July 19, 2016, request for all city banking account statements, including checking, money markets, and CDs, for September, October, and November 2014; March, April, and May 2015; and January through June 2016. The city clerk first acted upon Commissioner Stonum's request by contacting the city attorney and Mayor Glenn Sea to advise them of receipt of the request, explain that "[w]ith all the tax work going on right now, we do not have the time or interest to comply . . .," and solicit their comments. The city attorney promptly responded that Commissioner Stonum "is correct. We need to give him the records."
On July 25, the city clerk notified the city's elected officials and its city attorney that "we will assemble and send requested information in Commissioner Robert A. Stonum's July 19, 2016, letter . . . to [the Mayor] and all Commissioners in a timely manner." The city clerk and treasurer reminded these officials that their positions were not full time, and that although they would "start getting the requested information [,] . . . City of Worthington Hills daily property tax requests, payments, recordkeeping and all other City of Worthington Hills business takes first priority over Commissioner Stonum's request in the limited amount of time available." Commissioner Stonum thereafter objected to distribution of the records identified in his request to all of the city's elected officials, 1 noting that his request was submitted under the Open Records Act and that the city had "already exceeded the 72 hours for production of responsive records."
On July 28, 2016, this office issued notification of receipt of Commissioner Stonum's appeal to the city clerk, city treasurer, and city attorney pursuant to 40 KAR 1:030 Section 3. Although that notice advised the city of its right to respond to Commissioner Stonum's appeal, the city elected not to do so.
The City of Worthington Hills violated KRS 61.880(1) in failing to respond to Commissioner Stonum's request in writing, and within three business days, and to make available for inspection the nonexempt records to which he requested access. 2 The fact that the city clerk and treasurer prioritized other city business over the statutory mandate found at KRS 61.880(1) did not relieve them of their legal obligations. In a prior decision, this office rejected a public agency response that it could not immediately comply with a request for records "because of the press of business." 96-ORD-238, p. 2. Later we observed, "the duty to respond to an open records request, and to afford the requester timely access to the records identified in the request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4, quoted in 14-ORD-026, p. 4. As the Kentucky Court of Appeals very recently observed:
The Open Records Act is neither an ideal nor a suggestion. It is the law. Public agencies must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of the law which rightly favors disclosure, fosters transparency, and secures the public trust.
Cabinet for Health and Family Services v. Courier Journal, Inc., and Lexington H-L, Inc. , -- S.W.3d -- (Ky. App. 2016). Failure to treat the Open Records Act as anything less than the law is contrary to the spirit and the letter of the law.
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 must 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