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 Oldham County Attorney and the Oldham County Planning and Zoning Commission violated the Open Records Act in the disposition of attorney Wade Hampton Helm's clients' requests for records pertaining to Robert Offutt and Dynegy, Inc./Bluegrass Generation Company. For the reasons that follow, we conclude that the County Attorney and the Commission violated KRS 61.880(1) in failing to respond in writing, and within three business days, to their requests.
In his letter of appeal, Mr. Helm indicates that he represents a group of concerned citizens in Oldham County who are opposed to a proposed peaking power plant in Buckner, Kentucky. Their requests are summarized below:
March 15, 2001 - Dorothy Lammlein submits a request to John Fendley, Oldham County Attorney, seeking access to reports, summaries, analyses, studies or tests presented by Robert Offutt from March 1, 1999 to March 15, 2001, to the Oldham County Fiscal Court in conjunction with the Dynegy, Inc./Bluegrass Generation Company, LLC Power Plant project;
March 15, 2001 - Elsie Carter submits a request to Mr. Fendley for access to minutes of meetings of the Oldham County Fiscal Court from March 17, 1999, to March 15, 2001, at which Dynegy Inc./Bluegrass Generation Company and/or Robert Offutt appeared to update the Fiscal Court on the status of the project or presented to the Fiscal Court any reports, analyses, test results, or scientific studies relating to the power plant's impact on air quality or the environment;
March 15, 2001 - Patricia Garlock submits a request to Mr. Fendley for access to any contracts between Robert Offutt and Oldham County government from January 1, 1998, to March 15, 2001;
March 23, 2001 - Valerie L. Shannon submits a request to the Oldham County Planning and Zoning Commission for access to air and water discharge permit applications submitted by Dynegy, the site plan approved by the Commission for the Dynegy Power Plant, the soil and erosion control plan approved by the Commission for the Dynegy Power Plant, and the noise impact study submitted to the Commission for the Dynegy Power Plant.
Mr. Helm's clients received no written responses to these requests, prompting them to ask that he initiate this appeal.
In a response directed to this office following commencement of Mr. Helm's appeal, Mr. Fendley defended his actions. He explained:
This open records request was made to the Oldham County Attorney's Office which is not the depository for said records. I did notify the offices of the Oldham County Clerk and the Oldham County Judge/Executive, as well as one of the requesting parties, Elsie Carter, that all requests should be directed to the County Clerk and County Judge. I believe those offices were contacted and all the records these two officials had in their control relating to the request was made available and were reviewed.
In closing, Mr. Fendley indicated that he had no knowledge of any request having been made to the Oldham County Planning and Zoning Commission.
Although both Mr. Helm and Ms. Carter have confirmed that the requesters were afforded access to the records identified in their requests to Mr. Fendley, neither Mr. Fendley nor the Planning and Zoning Board discharged their statutory duties under KRS 61.880(1) by responding in writing, and within three business days, to the requests. Mr. Fendley states that he orally advised Ms. Carter that her request should be directed to the Oldham County Judge-Executive and Oldham County Clerk. She, in turn, apparently communicated this information to the other requesters. The Oldham County Planning and Zoning Commission did not respond in any fashion to the request submitted to it. To this extent, their disposition of these requests was procedurally deficient.
KRS 61.880(1) establishes procedural guidelines for public agency response to an open records request. That statute provided:
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.
In addition, KRS 61.872(4) 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.
If, in fact, Mr. Fendley was not the official custodian of the records identified in the requests submitted to him, he was obligated to immediately so notify each of the requesters in writing, and to furnish each of them with the name and location of the official custodian of the agency in possession and control of the public records. Oral notification to one of the requesters was not sufficient to discharge this duty. We urge Mr. Fendley to review the cited provision to insure that future responses conform to the Open Records Act.
With reference to the Oldham County Planning and Zoning Commission's failure to respond to the open records request directed to it, we find that its inaction constituted a violation of KRS 61.880(1). "The language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It requires a timely written response to the person making the request accompanied by the requested records or a statement of the specific exception authorizing nondisclosure. The Commission is directed to immediately respond to Valerie Shannon's March 23, 2001, request by releasing the records identified in that request to her, or stating the statutory basis upon which access is denied.
In his letter of appeal, Mr. Helm questions the propriety of the Oldham County Fiscal Court's February 14, 2001, meeting. Because this issue was not presented to us in the posture of an open meetings appeal, we cannot review. If Mr. Helm and his clients wish to pursue their remedies through an open meetings appeal, they must file a written complaint with the presiding officer of the Oldham County Fiscal Court. The complaint must state the circumstances of the violation, and what the Fiscal Court should do to correct it. Within three business days of receipt of the complaint, the Fiscal Court must decide whether to correct the violations and notify the complaining party of its decision. If the Fiscal Court rejects the proposed remedy, it must issue a written response which cites the statute authorizing its action, and explain how the statute applies.
Mr. Helm and his clients may then appeal to the Attorney General for review of the Fiscal Court's actions within sixty days of receipt of the Fiscal Court's response. The appeal must include a copy of the written complaint and a copy of the Fiscal Court's response, if available. The Attorney General will review the appeal and issue a decision stating whether the Fiscal Court violated the Open Meetings Act. Short of an open meetings appeal, the Attorney General is foreclosed from reviewing this issue.
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.