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 Fort Wright Police Department violated the Open Records Act in the disposition of Chris Henson's April 23, 2001, request for copies of two offense reports, identified by date, time, place, and nature of reported offense. For the reasons that follow, we find that the Department violated KRS 61.880(1) in failing to respond to Mr. Henson's request.
On April 23, Mr. Henson submitted a written request to the Fort Wright Police Department for copies of:
1. Theft report, reported by Days Inn 1945 Dixie Highway on March 22nd 2001 at 10:00 A.M. [sic];
2. Burglary report, reported by Lookout Heights Civic Center, 1661 Park Rd. on March 6th 2001 at 12:30 P.M. [sic].
Mr. Henson resubmitted his request to the Department on May 1, 2001. Having received no response to either request, Mr. Henson initiated this appeal on May 14, 2001.
It is the opinion of this office that the Fort Wright Police Department violated KRS 61.880(1) by failing to respond to Mr. Henson's requests. KRS 61.880(1) 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 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. Agency inaction is not a viable option.
The Fort Wright Police Department was afforded not one but three opportunities to comply with KRS 61.880(1) by responding to Mr. Henson's original request, by responding to his resubmitted request, and by responding to those requests upon receipt of this office's notification of appeal. The Department took no action. This omission is exacerbated by the fact that the records which Mr. Henson requested are of a public nature, and no justification for withholding those records has been presented.
In reaching this decision, we assume the truthfulness of Mr. Henson's statement of the facts. Although notice of this appeal was mailed to the chief of the Fort Wright Police Department and the Fort Wright city attorney on May 18, 2001, neither availed himself of the opportunity to challenge Mr. Henson, or otherwise defend the Department's disposition of his requests. Accordingly, we find that the Fort Wright Police Department violated KRS 61.880(1), and should immediately notify Mr. Henson of the copying costs for the records identified in his request (not to exceed ten cents per page), as well as postage charges. Upon receipt of prepayment for copies and postage, the Department is directed to mail the offense reports to Mr. Henson without further delay.
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.