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Request By:


Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General

Open Records Decision

This matter is before the Attorney General on appeal from the actions of the Office of the Knox County Judge/Executive and the East Knox Water District in response to the open records request of Glen D. Mills, dated August 5, 1999, for a copy of the merger agreement between the East Knox and Dewitt Water Districts.

Gerald K. West, Knox County Judge/Executive, by letter dated August 18, 1999, responded to Mr. Mills request, advising him:

This letter will serve as a follow up to your concerns regarding the East-Knox Water District Public Records. As you indicated in your letter to my office, the records in question are properly held by the East-Knox Water District. Pursuant to Attorney General Opinion 89-61, I refer you to the East-Knox Water District where these records are maintained. In order to facilitate the processing of your request, by this letter I am requesting that the Honorable Skip Hammons make these documents available to you, pursuant to KRS 61.872 in light of both parties complying with the open records act.

In his letter of appeal, dated September 21, 1999, Mr. Mills indicated that he had yet to receive a copy of the merger agreement. He argues improper maintenance of public records in that the public record was maintained in the office of Skip Hammons, the attorney retained by the East Knox Water District, rather than in the office of the water district.

After receipt of Mr. Mills' letter, and as authorized by KRS 61.880(2), Skip Hammons provided this office with a response on behalf of East Knox Water District. In his response, dated October 6, 1999, Mr. Hammons indicates that along with a copy of his letter to the Attorney General, a copy of the record Mr. Mills requested was being provided to him. Mr. Hammons further stated that through inadvertance and oversight, he had failed to send a copy of the record as he had indicated he would.

Because Mr. Mills has been provided with a copy of the requested record, the substantive issue of his appeal is moot. 40 KAR 1:030, Section 6. However, we find that the public agencies failed to provide Mr. Mills with timely access to the record he requested in violation of the Open Records Act.

Mr. Mills submitted his open records request to the Office of the Knox County Judge/Executive on August 5, 1999. Judge West advised him, by letter dated August 18, 1999, that the records were maintained by the East Knox Water District. This constituted a procedural violation of KRS 61.880(1) in that the agency failed to respond to the request within three working days after its receipt. However, the response did advise Mr. Mills that the East Knox Water District would be the custodian of the requested record. This was consistent with the requirements of KRS 61.872(4), which 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.

Judge West further advised Mr. Mills that to facilitate his request, he was requesting the Water District's attorney to make the record available to him. As of the date of his letter of appeal, September 21, 1999, Mr. Mills indicated that he had not been provided with a copy of the record. Mr. Hammons' response indicates Mr. Mills was not provided with a copy of the record until October 6, 1999. The agencies offer no justification under the Open Records Act for the delay in providing Mr. Mills with the requested record. Accordingly, we conclude that this failure to provide timely access to the request also constituted a procedural violation of the Act.

The Attorney General has consistently recognized that "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." 93-ORD-125, p. 5; 93-ORD-134, p. 9. In the latter decision, we observed:

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.

Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.

93-ORD-134, p. 9, 10.

This office has previously recognized that although an agency's attorney may have possession of an agency's record, this fact does not negate the public agency's duty to comply with the requirements of the Open Records Act. See 95-ORD-114.

In the instant case, the fact that the East Knox Water District's attorney had possession of the requested merger agreement did not excuse the public agency from providing Mr. Mills and the public with timely access to the document. The lengthy period of time which elapsed between Mr. Mill's request and when he was provided the requested record represents an inordinate and unjustified delay. Accordingly, we conclude that the East Knox Water District violated the Open Records Act in failing to provide Mr. Mills timely access to a public record.

We urge the public agencies involved in this appeal to review the cited provisions to insure that future responses comply with the Open Records Act.

Finally, in his letter of appeal, Mr. Mills asked that we impose disciplinary sanctions on persons involved and remove the chairman of the Dewitt Water District for violating the Open Records Act. Although we find that the agencies erred in failing to provide timely access to the requested record, we are not empowered to impose sanctions on them for violation of the Act as Mr. Mills requests. Our authority is defined by statute. Pursuant to KRS 61.880(2)(a), the Attorney General is required to review a public agency's denial of a request to inspect a public record, if a complaining party asks that he do so, and to issue a written decision stating whether the agency violated the Open Records Act. 94-ORD-8; 94-ORD-108. Sanctions, where appropriate, must be imposed by the courts. KRS 61.882; KRS 61.991(2)(a).

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.

The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Requested By:
Glen D. Mills
Office of the Knox County Judge/Executive and East Knox Water District
Open Records Decision
Lexis Citation:
1999 Ky. AG LEXIS 181
Forward Citations:

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