Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented on appeal is whether the City of Ravenna ("City") violated the Open Records Act in failing to substantively respond to William Van Cleve's February 14, 2019 open records request. For the reasons that follow, we conclude that the City of Ravenna violated the Open Records Act.
In his request, Appellant asked for "a copy of all records that were used to determine the amount of pay for the public service worker that was reported to the City Council on the following monthly financial statements," with a list of each month of 2018 with the corresponding salary amount. Appellant received a response from the City Clerk, stating, "[t]he public service worker is paid a 40-hour week every week. Anytime he works less than 40 hours he uses his sick, vacation, or comp time to make sure he has the full 40." The City Clerk did not provide any responsive records and provided no statutory or other authority for failing to provide the requested records. Appellant initiated this open records appeal by letter dated February 26, 2019.
On February 27, 2019, the Attorney General sent a copy of Appellant's appeal, along with our notification of receipt of open records appeal, to Ashely Moore, City Clerk of Ravenna, and Brooks Stumbo, Esq., who represents the City in these matters. 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 City has taken relative to Appellant's appeal.
The City's failure to provide Appellant the requested records constitutes a violation of KRS 61.880(1). In relevant part, that statute provides:
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.
Further, pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency. . ." Because the City did not respond to this office's notification of appeal, it advanced no legal basis for denying that request.
The City's initial response to Appellant was deficient as it did not give a specific exception authorizing the withholding of the requested records and did not give a brief explanation of how the exception applies to the withheld record pursuant to KRS 61.880(1). See 02-ORD-116; 04-ORD-027. The City had 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 City failed to do so and failed to give any reason for not complying. Accordingly, the City 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.