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 Oldham County Fiscal Court violated the Open Records Act in failing to respond to Judy L. Ponder's May 3, 1999, request. For the reasons that follow, we find that the Fiscal Court's inaction relative to her request constituted both a procedural and substantive violation of the Act.
This is not the first time that Ms. Ponder has appealed the inaction of the Oldham County Fiscal Court. In 99-ORD-89, the Attorney General held that the Oldham County Fiscal Court violated the Open Records Act by failing to provide Ms. Ponder with records relating to the Oldham County Building Compliance Inspector. At page 3 of that decision, which was issued on May 25, 1999, the Attorney General concluded that the Fiscal Court had violated the Act, and, as a corollary, must arrange for Ms. Ponder to inspect and receive copies of the records or initiate a challenge to that decision in circuit court.
On May 10, 1999, Ms. Ponder initiated a separate open records appeal, complaining that the Fiscal Court had not responded to her most recent request which she hand-delivered to Oldham County Judge/Executive John Black on May 3, 1999. Again, the Attorney General sent a copy of Ms. Ponder's letter of appeal, along with our own notification of receipt of open records appeal, to Judge Black and Oldham County Attorney John Fendley. Again, we received no response to our notification, although the notification clearly stated that the Fiscal Court "may respond to this appeal." For this reason, we must again assume that the facts presented by Ms. Ponder are accurate. Based on these facts, we again find that the failure of the Oldham County Fiscal Court to respond to Ms. Ponder's request, and to produce for her inspection and copying all nonexempt public records which were responsive to her request, constituted a violation of the Open Records Act.
We will not belabor the issue of the Fiscal Court's procedural noncompliance, having covered this well-worn ground in 99-ORD-89. As we noted at page 3 of that decision, "This office has not been presented with any reason for the Oldham County Fiscal Court's failure to conform its conduct to the clear requirements of the Open Records Act. " Here, as there, the Fiscal Court had two opportunities to comply with KRS 61.880(1) "by responding to Ms. Ponder's original request, and by responding to her request upon receipt of this office's notification of appeal." 99-ORD-89, p. 3. Here, as there, the Fiscal Court took no action. And here, as there, this omission is exacerbated by the fact that most, if not all, of the records which Ms. Ponder requested "are of a clearly public nature, and no justification for withholding the records has been presented." Id.
This decision, along with 99-ORD-89, will become legally binding on the Oldham County Fiscal Court if not appealed within thirty days of issuance. KRS 61.880(5)(a). If the Fiscal Court does not appeal them, but continues to withhold the records, these decisions can be enforced in the Oldham County Circuit Court. The circuit court has the power to award Ms. Ponder her costs for enforcement, including attorney's fees, and an amount not to exceed $ 25 per day for each day that she is denied access to the records. KRS 61.882(5). The court may also impose penalties on Oldham County officials for the willful concealment of public records if evidence of such conduct exists. KRS 61.991(2)(a) and (b). We trust that these issues of records access can be amicably resolved in the interest of avoiding such extreme measures and unwelcomed results.
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.