Request By:
Jack Heck, Principal Assistant
Dept. of Administrative Services
Transportation Cabinet
Frankfort, Kentucky 40622
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
Mr. William Lewis Collins of Whiteburg, Kentucky, appealed to this office for a formal opinion of your denial of his request of your agency for records pertaining to:
That real property not already acquired by the Commonwealth, located south of State Highway Fifteen Bypass near Whitesburg in Letcher County Kentucky and owned by the Jessie S. Collins heirs, and which may, in whole or part, be known to the Transportation Cabinet as Parcel Number 149W Fed. No. APD102(76) and AP-67-19-BRI.
Your denial of Mr. Collins' request was "[p]ursuant to KRS 61.876(3) Sec. 4, Item 4, "and stated: "At the present time there is litigation pending on this property.
Subsequent to Mr. Collins' request for an opinion of this office about your denial, he wrote this office to narrow the scope of his already denied request effective "to only those items which pertain to the Transportation Cabinet's decision that the instant tracts should be acquired." You have not had an opportunity to respond to the narrowed request.
It is the opinion of this office that your denial of Mr. Collins' request failed to state a sufficient reason for not making documents available for his inspection. First, there is no such statute codified as "KRS 61.876 Sec. 4, Item 4." Second, there is no allowance in the Open Records Act for nondisclosure of documents pertaining to subjects of "litigation pending." Thus, your denial of the request is facially defective.
However, as stated above, Mr. Collins is now asking this office for an opinion as to this subsequent, narrowed request, to which you have never had an opportunity to respond. It would be unfair of this office to decide that you or your agency has improperly responded.
Thus, while it is the opinion of this office that your response to Mr. Collins' initial request was inconsistent with the provisions of KRS 61.870 - .884, at the same time, we believe that your office should be given an opportunity to respond to his subsequent, altered request. This office cannot give an opinion as to a response never made to a request never received.
Should you or Mr. Collins disagree with this opinion, either of you may appeal to the circuit court of the county where the records are maintained. A copy of this opinion is being sent to Mr. William Lewis Collins who requested it.