Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the failure of the Department of Local Government to respond to Ms. Shirley Phillips's open records request.
On December 14, 1994, Ms. Phillips faxed a request to the Department of Local Government (DLG) requesting "any correspondence or phone messages from Mayor Brenda Douglas, City Clerk Nancy Henley, citizen David Hoskins that occurred since January 1, 1994, regarding the Block Grant of Bardwell and any other Bardwell City Business."
On December 22, 1994, Ms. Phillips faxed a letter to Mr. Bruce Ferguson, Commissioner, Department of Local Government, stating DLG had failed to respond to her December 14, 1994 correspondence, in accordance with the Open Records Law, as it had been eight days since she made her request.
On December 29, 1994, Ms. Phillips faxed the instant appeal to this office seeking a ruling on the failure of DLG to respond in accordance with the Open Records Act.
For the reasons which follow, and assuming the facts of this appeal to have been fairly and accurately presented, we conclude that the DLG's failure to respond constituted a procedural violation of the Act.
KRS 61.880 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 requester within three working days of receipt of the request, and indicate whether the request will be granted. If the public agency denies all or any portion of the request, the response must include a statement of the specific exception authorizing the withholding, and a brief explanation of how the exception applies to the record withheld.
The DLG violated the Open Records Act to the extent it failed to respond to Ms. Phillips's request in writing and within three working days, or, in the alternative, to release the records she requested.
Although DLG was notified that Ms. Phillips had initiated an open records appeal with this office ("Notification of Extension of Time for Issuance of Attorney General's Decision in Open Records Appeal" sent on January 4, 1994), DLG made no response to refute the allegations contained in the appeal. We urge the Department to review KRS 61.880(1) to insure that future responses conform to the Open Records Act. Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Accordingly, the DLG is directed to promptly respond to Ms. Phillips's request in writing and promptly release the records or if the request is denied, in whole or in part, the response should 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. KRS 61.880(1).
The Department for Local Government may challenge this decision 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 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.