Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Paintsville Police Department's handling of an open records request. On September 10, 1997, Clayton Clouse requested copies of records and reports pertaining to his 1989 indictment in Johnson Circuit Court. Having received no response to his request, Mr. Clouse initiated an open records appeal on September 22.
Upon receipt of this office's notification of appeal, the Department issued a response in which it acknowledged that Police Chief Tom Haney had received a handwritten request 1 from Mr. Clouse. Because the Department did not have custody of the records Mr. Clouse sought, Chief Haney elected not to respond. The Paintsville Police Department asked that its response be treated as a KRS 61.872(4)notification that the Department is not custodian of the requested records, and that the custodian is, in fact, Vicki Rice, Johnson Circuit Court Clerk. The Department forwarded a copy of this response to Mr. Clouse.
The question presented in this appeal is whether the Paintsville Police Department violated the Open Records Act in its handling of Mr. Clouse's request. We conclude that the Department's response was procedurally deficient, but substantively correct.
KRS 61.880(1) establishes 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.
The Department violated this provision by failing to issue a written response to Mr. Clouse's request within three business days. An agency is not relieved of its duties under the Act simply because the request is handwritten or the records sought are not in its custody. As we have so often observed, "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." 94-ORD-128, p. 2. We urged the Paintsville Police Department to review the cited provision to insure that future responses conform to the Open Records Act.
We further find that the Department's response, albeit untimely, was substantively correct. The Department properly advised Mr. Clouse that it is not the custodian of the records he seeks, pursuant to KRS 61.872(4), and furnished him with the name of the actual custodian of the records. KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
The Department's response satisfied the requirements of this statute. Although the Johnson Circuit CourtClerk is not bound by the provisions of the Open Records Act, Ex parte Farley, Ky., 570 S.W.2d 617 (1978);York v. Commonwealth, Ky.App., 815 S.W.2d 417 (1991), Mr. Clouse may wish to redirect his request to the clerk who will respond under rules established by the Administrative Office of the Courts relating to access to court records.
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 he should not be named as a party in that action or in any subsequent proceeding.
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