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 Bullitt County Central Dispatch violated the Open Records Act in its handling of Tony Hayes's April 15, 1999, request for "a copy of the wrecker rotation list and wrecker log for the last year and a copy of [the] wrecker rotation call list policies and procedures." For the reasons that follow, we find that Central Dispatch did, in fact, violate the Act.
On May 3, 1999, James D. Winchell initiated this appeal on behalf of his client, Mr. Hayes. Mr. Winchell explained that Mr. Hayes submitted his open records request to Tom Grossman, Bullitt County Central dispatcher, who furnished Mr. Hayes with a copy of the City of Shepherdsville wrecker rotation list from January 1, 1999, to April 15, 1999, but orally refused to furnish him with the other records identified in his request. Mr. Grossman advised Mr. Hayes that he would provide him with the remaining records only if those records were subpoenaed. Mr. Winchell indicated that Mr. Grossman did not respond in writing to his client's request.
Upon receipt of Mr. Winchell's open records appeal, this office issued a notification of appeal to Mr. Grossman and Bullitt County Attorney Walter Sholar. We received no response to our notification, and have not been advised that Central Dispatch has taken any additional action relative to Mr. Hayes's request. We must therefore conclude that Central Dispatch's actions constituted both a procedural and substantive violation of the Open Records Act.
Bullitt County Central Dispatch's failure to respond to Mr. Hayes's request in a proper and timely fashion constituted a violation of KRS 61.880(1). 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.
Mr. Winchell indicates that Mr. Grossman responded to Mr. Hayes's request by releasing the City of Shepherdsville wrecker rotation list from January 1, 1999, to April 15, 1999, but refusing to release all other records identified in the request without explanation. He issued no written response.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 857 (1996). As noted above, that response must be in writing and issued within three business days of receipt of the request. "A limited and perfunctory response," the Court concluded, does not "even remotely comply with the requirements of the Act. . . ." Id. The failure to issue any response is especially egregious.
Upon receipt of Mr. Hayes's request, Bullitt County Central Dispatch was statutorily required to review the records within its custody that were responsive to the request. On the third day after receipt of the request, Central Dispatch was required to release all of the records to Mr. Hayes for inspection and copying. 1 If, in the view of Central Dispatch's records custodian, some of the requested records qualified for exclusion under one or more of the exceptions codified at KRS 61.878(1)(a) through (l), the custodian was required to identify the exception and explain how the exception applied to the records withheld in a written denial. If no responsive records existed, the custodian was required to affirmatively so state in that denial. OAG 86-38; OAG 90-26; OAG 91-101.
We acknowledge that Mr. Grossman made some effort to comply with the Open Records Act by releasing the January 1, 1999 - April 15, 1999 Shepherdsville rotation list. Given the ambiguity of Mr. Hayes's original request, Mr. Grossman may have assumed that when Mr. Hayes asked for records "for the last year, " he was referring to the already expired portion of the current calendar year. Apparently, Mr. Hayes's request was directed at records generated in the 1998 calendar year. It is those records which must be disclosed, along with the 1998 wrecker log and the wrecker rotation call list policies and procedures. Bullitt County Central Dispatch has advanced no argument in support of its refusal to release the records, and we know of no legally recognized basis for denying access to these records. See, e.g., 93-ORD-41 (requiring disclosure of wrecker rotation lists and logs) and 95-ORD-113 (generally requiring disclosure of policies and procedures manuals).
Pursuant to KRS 61.872(2), "Any person shall have the right to inspect public records, " and Mr. Hayes cannot be compelled to obtain a subpoena in order to exercise this right of inspection. To the extent that Bullitt County Central Dispatch failed to respond to Mr. Hayes's request in a proper and timely fashion, and conditioned his right of inspection on obtaining a subpoena, it violated the Open Records Act. The disputed records should therefore immediately be made available to him.
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.
Footnotes
Footnotes
1 KRS 61.874 authorizes public agencies to prescribe a reasonable fee for making copies of nonexempt public records and to require advance payment of the prescribed fee.