22-ORD-218
October 14, 2022
In re: Richard Goins/Transportation Cabinet
Summary: The Transportation Cabinet (“the Cabinet”) violated the
Open Records Act (“the Act”) when it failed to respond to requests for
public records. The Cabinet also violated the Act when it attempted to
require the use of a particular form in submitting an open records
request.
Open Records Decision
On August 18, 2022, Richard Goins (“Appellant”), DOT Compliance Manager
for Missouri Farmers Association, Inc. (“MFA”), made an e-mail inquiry to the
Cabinet’s Division of Motor Carriers regarding the detainment of one of MFA’s trucks
at a weigh station. The Appellant asserted that during that incident the inspector
had added a note to the inspection form regarding MFA, which stated “(Verified with
Kentucky Motor Carriers) (This is a Chameleon Carrier).”1 The Appellant stated that
he was “formally requesting copies of the documentation that the enforcement official
saw that in turn made that officer print that on [MFA’s] inspection.” Although the
Cabinet replied to the e-mail, it did not address the Appellant’s request for records.
During further e-mail discussion with the Cabinet on the same date, the
Appellant stated that it was “necessary for [him] to have access to the document that
the enforcement officer viewed at the time of the inspection which provoked this
Citation description” of MFA as a chameleon carrier. Again, the Cabinet responded
but did not address the Appellant’s request for records.
1
A “chameleon carrier” may be described as an “ephemeral motor carrier created by a central
controlling company to escape the repercussions of repeated safety and regulatory violations.” Great
West Casualty Co. v. Maric Transportation, Inc., 2022 WL 4290684 n.1 (N.D. Ohio Sept. 16, 2022).On August 23, 2022, the Appellant informed the Cabinet by e-mail that he was
“still required to follow up with whatever procedure must be conducted to obtain a
copy of [MFA’s] file as it was at the time of the stop” in order to “be able to explain to
[his] superiors at MFA what the printed statement on the inspection means and [he
could] not do so without reviewing these documents.” Again, the Cabinet did not
respond to his request.
On September 13, 2022, after speaking with the Cabinet by telephone, the
Appellant reiterated his “request for all records concerning enforcement and status
as seen by enforcement officials regarding MFA.” Expressly invoking the Act, he
stated that he was “asking [the] office for these records.” On September 15, 2022, the
Cabinet acknowledged that the Appellant had “mentioned going through Open
Records to get the documentation” and stated that a “request through them [i.e., the
Cabinet’s records custodian] is required.” The Cabinet gave the Appellant a link to a
request form, which it described as “the form needed to request the information,” and
stated that the completed form should be e-mailed to a certain e-mail address. This
appeal followed.
Under the Act, a public agency must issue a written response to a request for
public records within five business days of receiving the request. KRS 61.880(1).
Furthermore, under KRS 61.872(4), “[i]f 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.” Here, the Appellant made four separate
requests to the Cabinet for records, the first three of which went unanswered. Thus,
the Cabinet violated the Act when it failed to respond to the Appellant’s requests
submitted on August 18 and 23, 2022.
When the Cabinet responded to the Appellant’s request submitted on
September 13, 2022, it properly directed the Appellant to the e-mail address for its
custodian of records. However, the Cabinet stated that a particular form was “needed”
to request records. Under KRS 61.872(2)(c), “[a] public agency shall not require the
use of any particular form for the submission of an open records request, but shall
accept for any request the standardized form developed under KRS 61.876(4).”
Therefore, the Cabinet violated the Act when it attempted to require the use of a
particular form for an open records request.2
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 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
2
On appeal, the Cabinet notes that the Appellant has not submitted a subsequent request to its
custodian of records. However, the Cabinet states that after receipt of this appeal it provided the
Appellant with the only record in its possession that refers to the status of MFA as a chameleon carrier.be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/James M. Herrick
James M. Herrick
Assistant Attorney General
#355
Distributed to:
Mr. Richard Goins
Jesse W. Rowe, Esq.
Todd Shipp, Esq.