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 Ryland Heights Volunteer Fire Protection District violated the Open Records Act in responding to Jill R. Smith's request for financial records relating to the Fire Protection District. For the reasons that follow, we find that the Fire Protection District's response constituted a partial violation of the Act.
On April 21, 1999, Ms. Smith, a Commissioner for the City of Ryland Heights, submitted a request to Juanita Lewellen, Trustee of the Fire Protection District, in which she asked that the District provide her with the following records or information:
. List of disbursements made for the period July 1998 through March 1999 (vendor name, purpose and amount);
. Copies of financial statements (income and loss statements and balance sheets) period beginning October 1, 1998 through March 31, 1999;
. Quarterly income and loss statements with budget variances (Quarter ending December 1998 and March 1999).
In a letter dated April 23, 1999, but not served upon Ms. Smith until May 4, 1999, Mary Whitley, Board Member and Treasurer of the Ryland Heights Volunteer Fire Protection District, responded to Ms. Smith's request advising her as follows:
The Ryland Heights Volunteer Fire Protection District reports financial information annually to the Office of the Governor, Department for Local Government according to Kentucky Revised Statute 65.065. Enclosed please find a copy of the most recent report.
In response to the additional information requested, copies of the Ryland Heights Volunteer Fire Protection meetings are posted at the Kenton County Courthouse, Independence Kentucky and contain the monthly disbursements. Please refer to these sources for the financial information you may require.
We also invite the public to attend the Ryland Heights Volunteer Fire Protection District's monthly meetings.
This letter apparently constituted final agency action relative to Ms. Smith's request. KRS 61.880(1). 1 On May 7, Ms. Smith initiated this appeal.
It is the opinion of this office that the Ryland Heights Volunteer Fire Protection District's response to Ms. Smith's request constituted a partial violation of the Open Records Act. KRS 61.880(1) establishes guidelines for public agency response to a request under the Act, and requires that the agency respond in writing and within three business days. "The language of the statute directing agency action is exact."
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 857 (1996). KRS 61.880(1) mandates that if the agency denies all or any part of the request, the agency must cite the specific exception authorizing the withholding of the record, and "provide particular and detailed information in response to . . ." the request. Id.
Nothing in this statute relieves the agency of these clearly established duties simply because the requested records may be available elsewhere. See, e.g., OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card which it too had in its custody) ; 98-ORD-17 (holding that Jefferson County Sheriff's denial of requests for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet); and 98-ORD-100 (holding that Lexington-Fayette Urban County Government could not avoid its duty to address the issue of inspection of records in its custody and control by asserting that it was a mere "casual possessor" of those records). Based on these authorities, we find that the Ryland Heights Volunteer Fire Protection District was obligated to discharge its duties under KRS 61.880(1) by releasing all nonexempt records which were responsive to Ms. Smith's request to her, or by denying her access to them on the basis of one or more of the exceptions codified at KRS 61.878(1)(a) through (l), 2 within three working days of receipt of her request.
To the extent that the Fire Protection District's response to Ms. Smith's April 23 request, although apparently authored within the statutory three day period of limitation, was not served on Ms. Smith until May 4, 1999, that response violated KRS 61.880(1). The fact that the Mayor of the City of Ryland Heights wished to discuss the request at the next meeting of the city commission did not toll this statutory deadline or relieve the District of its duty under the law. Moreover, the District's response, when it was at last served on Ms. Smith, was deficient. Although the District properly released a copy of its "Special Districts Uniform Financial Information Report for Fiscal Year 1997-98" in partial compromise of the dispute concerning records access, it did not furnish Ms. Smith with records relfecting disbursements for the period of July 1998 through March 1999, but instead referred her to "copies of the Ryland Heights Volunteer Fire Protection meetings [which] are posted at the Kenton County Courthouse, Independence, Kentucky and contain the monthly disbursements. " As noted above, this response was not sufficient under the Act. The District made no reference to her request for income and loss statements and balance sheets for the period of October 1, 1998, to March 31, 1999, or quarterly income and loss statements with budget variances for the quarters ending in December 1998 and March 1999. Having advanced no arguments in support of nondisclosure, the Fire District was obligated to furnish Ms. Smith with copies of all existing financial records that were responsive to her request upon prepayment of a reasonable copying charge not to exceed the District's actual costs (generally deemed to be ten cents per page). KRS 61.874(1);
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985). We find that its failure to do so constituted a violation of the Open Records Act.
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 In her letter of appeal, Ms. Smith relates that on April 23, she received a voicemail message from Juanita Lewellen, the Trustee of the Fire Protection District to whom her written request had been directed. Ms. Lewellen advised her that consideration of her request would "be forthcoming at the next regular scheduled Ryland Heights City meeting on May 4, 1999." At that meeting, Ms. Smith's open records request appeared as an item on the agenda and was the subject of discussion. Mayor Ken Lewellen stated that Ms. Smith had used city letterhead to prepare her request without the consent of the other commissioners, and that therefore her request was denied. Contemporaneously, he presented her with the letter dated April 23 from Mary Whitley, partially honoring her request. While the Mayor's conduct raises serious questions under the Open Records Act, we do not address them here because he lacked authority to deny a request directed to the Fire Protection District and not the city, and because Ms. Whitley discharged the Fire Protection District's duty under KRS 61.880(1) as Treasurer and Board Member of the District by partially honoring Ms. Smith's request.
2 The Fire District advances no argument in support of nondisclosure of its financial records, and we know of no legally recognized basis for denying access to such records.