Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Leslie County Judge/Executive, Onzie Sizemore, violated the Open Records Act by failing to respond to Randy Skaggs's January 5, 1998, request for access to records and information pertaining to Leslie County's compliance with Kentucky's dog laws. For the reasons that follow, we find that the office of the County Judge/Executive violated KRS 61.880(1) and that it is obligated to immediately disclose to Mr. Skaggs all existing records which are responsive to his request, and to make available for inspection all existing records which contain the information he seeks.
Mr. Skaggs framed his request as follows:
I would like the following information from you: (1) a. name of dog warden, b. dog warden's financial compensation, c. is dog warden's job a full-time or part-time position, d. does the dog warden have a second job and, if so, who does he work for, e. is dog warden's phone number listed in the local phone book; (2) a. location of dog pound, b. description of dog pound, c. does the county own or contract for the services of a dog pound; d. if privately owned, the name, address and telephone number of owner or manager; e. if owned by the county, is the pound operated by a county employee, private individual or non-profit organization or humane society - please list their name, address and telephone number, f. hours of operation, g. is dog pound's telephone number listed in the local telephone book, h. if the county has a dog warden but no dog pound, where are the unwanted dogs being taken and what is happening to them - please remit independent verification, i. if the county has neither dog warden nor dog pound, is it because the fiscal court feels that it must not enforce all of Kentucky's laws but, only the ones it so chooses; (3) a. method of euthanasia utilized by dog pound (if by injection or gas, provide receipts and the name of the medical supply house from which procured); b. does a trained technician or veterinarian perform the euthanasia; (4) a. number of stray dogs picked up each month throughout the county, for each of the last twelve months, b. number of dogs picked up from or belonging to private individuals each month, for each of the last twelve months; (5) photostatic copies of contracts, financial compensation, expenditures, photographs of dog pound, copies of dog control ordinances, photostatic copies of telephone listings; (6) a. total amount of money expended by the county fiscal court for the last two years for dog warden and dog pound.
Mr. Skaggs's request was therefore by in large a request for information as opposed to records.
With respect to such requests, this office has observed:
[When the request] is one for information , rather than to inspect records , and thus does not technically conform to Open Records provisions, we believe the proper response . . . [is] to promptly respond in writing to the request. [The response should state] that while Open Records provisions [do] not require a public agency to compile information, records that might yield the information sought [will] be made available for inspection during normal office hours. . . . See for example, OAG 86-75, copy enclosed.
OAG 90-19, p. 3. The Leslie County Judge/Executive failed to issue any response to Mr. Skagg's request. This omission is compounded by his failure to explain his inaction to Mr. Skaggs and the Attorney General after receiving this office's notification of open records appeal, issued on February 23, 1998. Judge Sizemore was afforded not one but two opportunities to discharge his statutory duties under KRS 61.880(1), but failed to do so.
KRS 6.880(1) 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.
Upon receipt of Mr. Skaggs's January 5, 1998, open records request, Judge Sizemore should have gathered all existing documents which were identified in Mr. Skaggs's request (contracts, records of financial compensation, expenditures, photographs of dog pound, dog control ordinances, telephone listings) , and, within three business days, furnished Mr. Skaggs with copies of these records. Within the same three business days, he should have issued a written response to Mr. Skaggs's requests for information, advising him that records that might yield the information sought were available for inspection during normal office hours. If no records exist which were responsive to Mr. Skaggs's request, Judge Sizemore should have so advised him. OAG 91-101; OAG 90-69; OAG 90-26; OAG 86-38. His failure to take these steps constitutes a violation of the Open Records Act.
The Leslie County Judge/Executive is directed to furnish Mr. Skaggs with copies of the records identified in his request, and to afford him an opportunity to inspect all records pertaining to Leslie County's enforcement of Kentucky's dog laws which might yield the information sought. If no records exist, Judge Sizemore should immediately so advise Mr. Skaggs in writing.
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.