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 Perry County Detention Center violated the Open Records Act in failing to respond to John C. Brewer's August 1, 2001, request for records verifying "the time [he] spent in [that] facility on Indictment No. 96-CR-39." Mr. Brewer furnished the Center with his date of arrest and sentencing, as well as his social security number. Having received no response to his request, Mr. Brewer initiated this open records appeal by letter dated August 17, 2001, and received in this office on August 22, 2001. For the reasons that follow, we conclude that the Perry County Detention Center violated the Open Records Act.
On August 23, 2001, one day after we received Mr. Brewer's appeal, the Attorney General sent a copy of Mr. Brewer's letter of appeal, along with our notification of receipt of open records appeal, to the Detention 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 what, if any, action the Center has taken relative to Mr. Brewer's appeal.
The Perry County Detention Center's failure to respond to Mr. Brewer's August 1, 2001, 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 Perry County Detention Center had not one, but two, opportunities to comply with KRS 61.880(1), by responding to Mr. Brewer's original request, and by responding to his request upon receipt of this office's notification of appeal. The Center failed to do so.
Having provided no response to Mr. Brewer's request, and, thus, no legal basis for denying Mr. Brewer access to the requested records, and none being apparent, the Center is obligated to mail the requested records to Mr. Brewer. The Center may require prepayment for copies, not to exceed ten cents per page, and any postage charges incurred.
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.
John C. BrewerBell County Forestry CampRt. 2, Box 75Pineville, KY 40977
Matt FeltnerJailerPerry County Detention Center 481 Main StreetHazard, KY 41701
Lanny CombsPerry County Attorney2 Courthouse481 Main StreetHazard, KY 41701