Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Jefferson County Clerk's partial denial of Steve Burgin's September 13, 1995, request to inspect "records on handicapped parking permits now in effect here in Jefferson County . . . including the names and addresses of people who have been issued such permits." Mr. Burgin is a reporter for WLKY-TV, and recently conducted an investigation into misuse of handicapped parking permits. On behalf of the Jefferson County Clerk, Riggs Lewis, Director of Public Affairs, responded to Mr. Burgin's request on September 15, 1995, advising him as follows:
We will make available for your viewing an in-house list of Disabled Parking Placard applicants without their addresses. This list should be available to you by Monday, September 18, 1995.
Mr. Burgin indicates that he was told that the county clerk's partial denial of his request was premised on a letter from the Transportation Cabinet, Division of Motor Vehicles, citing OAG 91-155. Mr. Burgin questions this position, noting that the cited opinion does not address the propriety of withholding home addresses appearing on motor vehicle records.
We are asked to determine if the Office of the Jefferson County Clerk violated provisions of the Open Records Act in partially denying Mr. Burgin's request. For the reasons set forth below, and upon the authorities cited, we conclude that the county clerk's response was procedurally and substantively deficient.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
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 agency action.
(Emphasis added.) Although the Jefferson County Clerk responded in a timely fashion to Mr. Burgin's request, her office did not cite the specific exception authorizing the partial denial of his request. It was only after he made additional inquiries that he learned that the county clerk's office based its position on a letter from the Division of Motor Vehicles. 1 Having failed to cite the provision authorizing partial nondisclosure, the Jefferson County Clerk violated KRS 61.880(1).
Turning to the substantive issues in this appeal, we find that the office of the county clerk also failed to meet its statutory burden of proof in sustaining its partial denial of Mr. Burgin's request. KRS 61.880(2)(c). As noted, the county clerk invoked no exception authorizing partial nondisclosure of the disputed portion of the records, and indeed offered no written explanation for the decision to withhold home addresses. Instead, her office indicated orally that it relied on a letter from the Division of Motor Vehicles which cited OAG 91-155. 2 This is not a proper basis for denial under the Open Records Act. Accordingly, we are left with no alternative but to find that the Jefferson County Clerk's response was substantively deficient, and to order disclosure of those portions of the records previously withheld.
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. 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 proceeding.
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