Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Lexington Herald-Leader reporter, Bill Estep, to Whitley County Judge/Executive, Jerry F. Taylor, on December 3, 1993. Those records are identified as:
1. Loan agreements on all loans the county has taken out since January 1, 1990;
2. All health-insurance policies the county had in 1991, 1992 and 1993, including any policy on Judge Taylor;
3. A copy of any contract between Love Sanitation and Whitley County for garbage pickup at the courthouse.
Having received no response to his request as of December 14, 1993, Mr. Estep submitted this appeal to the Attorney General. In his letter of appeal, Mr. Estep modified his original request, and identified additional documents which he wished to inspect and copy. Because Judge Taylor was not apprised of the modifications to Mr. Estep's original request, we will not address the propriety of his failure to release the additional documents.
Shortly after Mr. Estep submitted his appeal, he was contacted by Judge Taylor, who advised him that he would be permitted to inspect the requested records. Judge Taylor explained that his former secretary had resigned and had moved to another county. Apparently, she alone knew the whereabouts of the records which Mr. Estep wished to inspect. Accordingly, Judge Taylor stated that he would ask her to be present on the prearranged date of inspection, December 22, 1993. On December 22, Mr. Estep went to Judge Taylor's office in Whitley County, but the Judge's former secretary did not appear. Judge Taylor explained that she had experienced problems with the water lines in her home. No efforts were made to locate the documents, and Mr. Estep received no further communication from Judge Taylor, who was succeeded in office by Hon. Leroy Gilbert on January 3, 1994.
The question presented in this open records appeal is whether Judge Taylor violated the Open Records Law by failing to comply with the procedural requirements of KRS 61.880(1), and by failing to afford Mr. Estep access to the requested records. For the reasons set forth below, we conclude that Judge Taylor violated the Open Records Law.
KRS 61.880(1) sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three business days of receipt of the request, and indicate whether the request will be honored. 1
As we noted in 93-ORD-125, at page 5, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request."
Mr. Estep's original open records request was submitted on December 3, 1993. Judge Taylor apparently failed to respond in writing, as required by KRS 61.880(1), but contacted Mr. Estep by telephone some ten to twelve business days later. Although he advised Mr. Estep, at that time, that the records would be made available for inspection and copying on December 22, Mr. Estep was not afforded access to them on that date, or on any date subsequent thereto. Assuming the facts to have been fairly and accurately presented by Mr. Estep, we conclude that Whitley County Judge/Executive, Jerry Taylor, violated the Open Records Act by failing to comply with the procedural requirements of KRS 61.880(1), and by failing to afford Mr. Estep timely access to the requested records.
It should be noted that the new County Judge has demonstrated a willingness to cooperate with Mr. Estep in locating the records identified in his December 3 request. We urge the parties to continue to work in a spirit of cooperation toward locating the records, and making them available for inspection.
Judge Taylor may challenge this decision by initiating action in the appropriate circuit court. 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.
Footnotes
Footnotes
1 KRS 61.880(1) provides in full: 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 action.