Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue in this appeal is whether the Tri-County Animal Control Center violated the Open Records Act by failing to respond to the September 18, 2000 open records request of Randy Skaggs for copies of the following records:
(1) photostat copies of any and all documentation and records pertaining to and indicating the total number of animals adopted out altogether by Tri-County Animal Control Center, for the entire twelve month period of fiscal year 1999-2000; and (2) photostat copies of any and all documentation and records pertaining to and indicating the names, mailing address and telephone numbers of the individuals that adopted the dogs (property) of Larry J. Clevinger, Douglas Rhoden and Don and Mary Bond prior to the elapsement of the minimum five day holding period as established by Kentucky state law.
Having received no response to his September 18, 2000 open records request, Mr. Skaggs initiated this appeal on October 9, 2000. On October 11, 2000, two days after the appeal was received in this office, the Attorney General sent a copy of his letter of appeal, along with our notification of receipt of open records appeal, to the Tri-County Animal Control Center and the Center's attorney. Although that notification clearly states that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no response to our notification, and have not been advised that the Center has taken any action relative to Mr. Skaggs's request.
The Tri-County Animal Control Center's failure to respond to Mr. Skaggs's September 18, 2000, request in a proper and timely fashion constitutes 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.
The Tri-County Animal Control Center had not one but two opportunities to comply with KRS 61.880(1) by responding to Mr. Skaggs's original request and by responding to his request upon receipt of this office's notification of appeal. The agency failed to do so.
In 00-ORD-175, this office determined that Tri-County Animal Control Center was a "public agency, " as defined in KRS 61.870(1)(h). Since the Center did not appeal this decision, it therefore has the force and effect of law. KRS 61.880(5)(b). Thus, the agency is subject to the provisions of the Open Records Act, including the procedural requirements of KRS 61.880 (1).
Having provided no response to his open records request and, thus, no legal basis for denying Mr. Skaggs access to the requested records, the agency is obligated to provide the requested records, if they exist, for his inspection. The Tri-County Animal Control Center is therefore directed to immediately release the records identified in Mr. Skaggs's request to him, or to notify him in writing that no responsive records exist.
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.