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 these consolidated open records appeals is whether the Oldham County Planning and Zoning Commission violated the Open Records Act in failing to respond to Judy L. Ponder's requests for copies of records relating to certain properties specifically identified in her requests, and in selectively adopting an open records policy apparently aimed at Ms. Ponder alone. For the reasons that follow, we find that the Planning and Zoning Commission's inaction relative to Ms. Ponder's requests constituted both a procedural and substantive violation of the Act. In addition, we find that although the policy which the Commission has adopted relative to requests submitted by Ms. Ponder finds support in the Open Records Act, that policy cannot be selectively applied to a single individual, but must be uniformly enforced or abandoned altogether.
Yet again, Ms. Ponder finds herself compelled to invoke the authority of the Attorney General to resolve records access dispute with Oldham County officials. On November 19, 1999, she verbally requested copies of records identified as:
1. Building Permit file for Vinnie Carothers, owner, 4301 Crosswood Dr, Crestwood, KY 40014, Northwood Subdivision, a property which adjoins mine, for the construction currently going on in the back of his house - appears to be a roof above a deck. I was told there was an Oct 1998 building permit issued for a deck and sauna, and I assume this was a one-year permit which has already expired.
2. The letter(s) from the Oldham County Water Company whereby they coordinated on the proposed Subdivision of Woods of Hillview, McMahan Development on Hwy 22.
3. Building permit file for 120 Peace Lane, Pewee Valley, KY 40056, for the construction/renovation described in the Nov 18, 1999 Oldham Era, Pg A12, owners Roger & Cindy Hack, Renovator: MRC Construction Co, Inc.
In response to her verbal request, Ms. Ponder was notified, in writing, that "any requests [she] made to [the Commission] . . . are to be done in writing." As a consequence, Ms. Ponder returned to her home, and prepared a written request for the same documents which she resubmitted on the same day. In spite of the fact that she furnished copies of her request to the Oldham County Judge/Executive John Black and Oldham County Attorney John Fendley, she received no response to her request. Shortly thereafter, she initiated the first of these consolidated open records appeals.
Lodging a continuing objection to the Commission's disparate open records policy, on December 2 Ms. Ponder requested a copy of "any and all documented facts/determinations justifying this rule [that her requests be submitted in writing]." In addition, Ms. Ponder requested copies of records relating to 322 Mount Mercy, Pewee Valley, Kentucky, including:
1. Building Permit files (application, permit, plans, etc.).
2. Investigations/complaint enforcement files.
Again, Ms. Ponder furnished a copy of her written request to the Oldham County Judge/Executive, Mr. Black, and the Oldham County Attorney, Mr. Fendley, along with the Commission's administrator, Mr. Urban. In this instance, the Commission belatedly responded to her request, only partially honoring it. 1 Ms. Ponder was left with no alternative but to initiate a second appeal to the Attorney General.
Because Ms. Ponder's appeals raise common issues of fact and law, we consolidate them for purposes of rendering an open records decision. We restrict our review to those issues arising under KRS 61.870 through KRS 61.884. Ms. Ponder's questions concerning possible malfeasance or misfeasance of office are not cognizable under the Open Records Act. Nevertheless, we wish to state, in the strongest possible terms, that the pattern of conduct which emerges from these appeals, as well as Ms. Ponder's earlier open records appeals involving the Commission, suggests a disregard for the Open Records.
In 99-ORD-124, this office addressed the failure of the Oldham County Planning and Zoning Commission to respond to an open records request submitted by Ms. Ponder in May, 1999. Concluding that the Commission's inaction constituted a violation of the Open Records Act, we incorporated by reference two earlier open records decisions involving Oldham County and Ms. Ponder. It is apparently necessary that we recite the relevant portions of those decisions in order to make our position abundantly clear. At pages 2 and 3 of 99-ORD-89, we opined:
KRS 61.880(1) establishes procedural guidelines for public agency response to an open records request. That statute provides:
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. The Fiscal Court had not one but two opportunities to comply with KRS 61.880(1) by responding in writing, and within three business days, to Ms. Ponder's original request, and by responding to her request upon receipt of this office's notification of appeal. The Fiscal Court took no action. This omission is exacerbated by the fact that the records which Ms. Ponder requested are of a clearly public nature, and no justification for withholding the records has been presented.
In 99-ORD-100, we concluded:
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 unwelcome results.
99-ORD-100, p. 2. Based on these decisions, in 99-ORD-124, we held that the Oldham County Planning and Zoning Commission violated the Open Records Act by its inaction, and that "it must immediately furnish Ms. Ponder with copies of the records identified in her request, or appeal the Attorney General's decision in the appropriate circuit court pursuant to KRS 61.880(5)." 99-ORD-124, p. 1.
The Commission's apparent 2 response to this decision was to implement an open record policy applicable to Ms. Ponder alone. Unlike other open records requesters, Ms. Ponder is required to submit her requests in writing. While KRS 61.872(2) clearly authorizes a public agency to adopt such a uniform policy, and impose it on all requesters, it does not authorize a policy of selective enforcement. Ms. Ponder stands in the same shoes as any other records applicant, and must be accorded the same treatment. If the Commission wishes to adopt a uniform policy requiring written application, it may do so pursuant to KRS 61.872(2). It is incumbent on the Commission, however, to formally adopt this rule, along with the others required by KRS 61.876(1) and (2), 3 and display a copy of its rules in a prominent location accessible to the public. In the absence of any evidence to the contrary, we conclude that the Commission's current practice directly contravenes the Open Records Act.
Based on our decisions in 99-ORD-89, 99-ORD-100, and 99-ORD-124, we again find that the Oldham County Planning and Zoning Commission violated the Open Records Act by failing to respond in writing, and within three business days, to Ms. Ponder's November 19 and December 2 records requests. The Commission must make immediate arrangements for Ms. Ponder to inspect the records identified in her requests, or, alternatively, appeal this decision to the appropriate circuit court. It may not elect to ignore this decision, or implement measures aimed at impeding Ms. Ponder's access to public records. The Commission's duty under the law is clear.
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 This fact was brought to our attention not by the Commission, but by Ms. Ponder, who, on December 10, 1999, furnished this office with a copy of a follow-up letter that she sent to the Commission after obtaining copies of some responsive records at the Commission's offices the previous day. It does not appear that the Commission had issued a written response to her December 2 request.
2 We employ the modifier "apparent" because the Commission did not respond in writing to her original records requests, or avail itself of the opportunity to state its position upon receipt of the Attorney General's notification of open records appeal. The Commission has not elected to share with this office any defense it might have for its position.
3 KRS 61.876(1) and (2) provide as follows:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records.
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies.
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
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