Opinion
Opinion By: Andy Beshear, Attorney General; Sarah Ellen Eads Adkins, Assistant Attorney General
Open Records Decision
The question presented on appeal is whether Muhlenberg County Detention Center violated the Open Records Act when it failed to respond to Joe Watson's August 30, 2018, open records request.
In his request, Appellant asked to inspect "any record which reflect[s] where the [Muhlenberg] County [Detention Center] has [his] personal property stored that was taken after [his] arrest on and placed in the Detention Center on 09/07/2016." Having received no response to his request, Appellant initiated this open records appeal by letter dated September 20, 2018 1, and received in this office on October 24, 2018. For the reasons that follow, we conclude that the Muhlenberg County Detention Center violated the Open Records Act.
On October 24, 2018, the Attorney General sent a copy of Appellant's appeal, along with our notification of receipt of open records appeal, to Mark Curry, Jailer at Muhlenberg County Detention Center, and Darris Russell, Muhlenberg County Attorney. Although that notification clearly states that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no response to our notification, and have not been advised what, if any, action the Detention Center has taken relative to the appeal. To be sure, Mr. Russell did respond with a number of documents that he assumes resolve the appeal, but he did not in fact respond to the nature of the open records request and he did not include a response to the Appellant. Appellant did not ask for a record of when and if he was compensated for lost property, but asked for a copy of the record indicating what property was lost. Regardless, Appellant has still not been afforded a response.
The Muhlenberg County Detention Center's failure to respond to Appellant's August 30, 2018, request in a proper and timely fashion constitutes a violation of KRS 61.880(1), which 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.
Muhlenberg County Detention Center had not one, but two, opportunities to comply with KRS 61.880(1), by responding to Appellant's original request and by responding to his request upon receipt of this office's notification of appeal. The Detention Center failed to do so and failed to give any indication why they have not complied.
Because Muhlenberg County Detention Center did not respond to Appellant's request or the appeal, it advanced no legal basis for denying that request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency. . . ."
Muhlenberg County Detention Center's failure to respond to the open records request is equivalent to a denial of that request without specific support in the form of "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); 02-ORD-116. Accordingly, Muhlenberg County Detention Center violated this Act and should immediately respond to Appellant's request or otherwise make the records available for his inspection.
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 proceedings.
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