00-ORD-233
December 20, 2000
In re: Judy L. Ponder/Oldham County Ethics Commission
Open Records Decision
The issue in this appeal is whether the Oldham County Ethics Commission violated the Open Records Act by failing to respond to the November 9, 2000 open records request of Judy L. Ponder. The request, addressed to William Howard, Chairman of the Commission, stated in relevant part:
I hereby submit to you an Open Records Act request for all the records listed in the attached Open Records request. I request a copy of all the Commission records which transpired since May 1999.
Although the County Clerk’s office informed me that Mr. Dale Viniard was the Ethics Commission Chairman, when I submitted the request to Mr. Viniard, he replied saying that you are the Chairman instead. Your Committee member, Mr. Viniard, again violated the Open Records Act by failing to say whether he did or did not have any Ethics Commission records – whether he retained any records from when he was Chairman or had any records from his tenure as a member of the Commission.
The records I request also include meeting minutes and documents which prove when you became Commission Chairman.
The open records request which Ms. Ponder referred to above and which she attached to her request to Mr. Howard, requested the following records:
[A]nnual disclosure statements that were required to be submitted by January 1, 2000 for the effective period of January 1, 1999 through December 31, 1999 & those submitted late; corrective action since my April 1999 complaints; correspondence; charts; notes; written determinations; policy statements; meeting minutes; fiscal court meeting notes/minutes pertaining to the subject of Ethics Ordinance, notices of appointments; investigations; election of Commission Chairman; and Ordinance revisions or amendments beyond the original version.
Having received no response to her November 9, 2000 open records request, Ms. Ponder initiated this appeal on November 20, 2000. On November 22, 2000, two days after the appeal was received in this office, the Attorney General sent a copy of her letter of appeal, along with our notification of receipt of open records appeal, to the Chairman of the Oldham County Ethics Commission, the Oldham County Judge Executive, and the Oldham County 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 Commission has taken any action relative to Ms. Ponder’s request.
The Commission’s failure to respond to Ms. Ponder’s November 9, 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 Commission had not one but two opportunities to comply with KRS 61.880(1) by responding to Ms. Ponder’s November 9, 2000 request and by responding to the request upon receipt of this office’s notification of appeal. The agency failed to do so.
Having provided no response to her open records request and, thus, no legal basis for denying Ms. Ponder access to the requested records, the agency is obligated to provide the requested records, if they exist, for her inspection. The Commission is therefore directed to immediately release the records identified in Ms. Ponder’s request to her, or to notify her 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.
Albert B. Chandler III
Attorney General
James M. Ringo
Assistant Attorney General
#730
Distributed to:
Judy L. Ponder
5930 Centerwood Court
Crestwood, KY 40014-9284
William Howard
Chairman, Oldham County Ethics Commission
4900 Fox Run Road
P.O. Box 248
Buckner, KY 40010
John Black
Oldham County Judge Executive
100 West Jefferson Street
LaGrange, KY 40031
John Fendley
Oldham County Attorney
100 West Jefferson Street
LaGrange, KY 40031