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 Wilder Fire Department violated the Open Records Act by failing to respond to Bernard Blau's January 19, 2001, request for copies of all public records relating to "the injuries, fire, and damages that occurred at 550 John Hill Road, at NKU Campus, Campbell County, Kentucky on April 9, 2000, that involved Gavin Ellis, Brian P. Theismann, James McCully, and Danny Thomas . . . ." We find that the department violated KRS 61.880(1) in failing to respond in writing, and within three business days, to Mr. Blau's records request.
Having received no written response to his January 19 request, Mr. Blau initiated this appeal on February 12, 2001. On February 13, 2001,this office sent a copy of Mr. Blau's request and letter of appeal, along with our notification of receipt of his open records appeal, to Chief James Profitt and City Attorney Justin Verst. Although that notification 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 department has taken any action relative to Mr. Blau's request.
The Wilder Fire Department's failure to respond to Mr. Blau's January 19 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.
Although the department had two opportunities to comply with KRS 61.880(1), by responding to Mr. Blau's original request and by responding to his request upon receipt of this office's notification of appeal, the department failed to do so.
If the Wilder Fire Department has custody of any non-exempt records that are responsive to Mr. Blau's request, the department should make arrangements for immediate release of those records to him. If the Wilder Fire Department does not have custody of any records responsive to Mr. Blau's request, the department should immediately notify him in writing that no responsive records exist. If the Wilder Fire Department has custody of any exempt records that are responsive to Mr. Blau's request, the department should immediately notify him in writing, citing one or more of the exceptions codified at KRS 61.878(1)(a) through (l), and briefly explaining how the exception(s) apply to the records withheld. Because KRS 61.880(1) mandates a written response, and the department may not elect to ignore Mr. Blau's request.
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 proceedings.
Bernard Blau3699 Alexandria PikeCold Spring, KY 40176
James ProfittFire Chief, City of Wilder400 Licking PikeWilder, KY 41071
Justin D. VerstCity AttorneyCity of Wilder400 Licking PikeWilder, KY 41071