Request By:
Mr. Joseph L. T. Ardery
Brown, Todd & Heyburn
Sixteenth Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney Ceneral
You have appealed to the Attorney General under KRS 61.880 the denial of inspection of certain public records in the custody of the Jefferson County Judge/Executive. Assistant County Attorney Charles I. Sandmann responded to you on behalf of the custodian and this opinion will be sent to Mr. Sandmann as the representative of the agency involved.
In your letter to the County Judge/Executive you described the documents you want to inspect as follows:
"1. All papers and documentary materials showing the funds that have been appropriated by the Jefferson County Fiscal Court for the 'Riverfields Project' (however denominated) in furtherance of which Jefferson County has condemned the Werners' property at 3916 Upper River Road.
"2. All papers and other documentary materials showing the amount of such appropriated funds that have been expended as of the date of this request and the amount of such appropriated funds remaining to be expended as of the date of this request.
"3. All papers and other documentary materials showing the amount of unexpended funds or properties that have been made available or are to be made available by Riverfields, Inc. and all other non-governmental sources on behalf of the said Riverfields Project.
"4. All papers and other documentary materials showing the amount of funds and other properties that have been made available or are to be made available by any agency of the Commonwealth of Kentucky or any agency of the United States in furtherance of or in relation to the said Riverfields Project."
OPINION OF THE ATTORNEY GENERAL
Mr. Sandmann's response to your request did not state any statutory exemption in KRS 61.878 upon which inspection was being denied. From your description of the records you want to inspect we can see no reason why the records fall within any of the statutory exemptions. However, we do think that the records could be more specifically described. From the broad general description of the records which you believe contain the information that you want, we are left in some doubt as to whether such records exist and if they are all located with one custodian. But that is a matter which should have been addressed by the custodian to whom you made your request. We therefore believe that the County Judge/Executive has not made a sufficient response to your request under the Kentucky Open Records Law, KRS 61.870-61.884.
You state that you made your request for inspection of records on behalf of your clients, Arnold and Marcella Werner, who are condemnees in an action instituted by Jefferson County. The Attorney General is prevented by the administrative regulations pertaining to the Department of Law, 40 KAR 1:020 § 4, from rendering an opinion in response to questions involving matters being litigated or questions submitted in contemplation of litigation. Since litigation is now in progress and, apparently, you are challenging the County's right to condemn, regular discovery procedures under the Rules of Civil Procedure seem to us to be appropriate. On the other hand, KRS 61.880(2) requires the Attorney General to give an opinion when so requested as to whether public records are being properly withheld from public inspection by an agency, and whether the agency acted consistent with the Open Records Law. The statute further provides that if the Attorney General upholds the request for inspection, the public agency involved shall either make the records available for inspection or may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court.
In summary, it is our opinion that the Jefferson County Judge/Executive has not made a sufficient response consistent with the Open Records Law and that the records requested, if they exist, should be made available for public inspection.