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 Menifee Fiscal Court violated the Open Records Act by failing to respond to Randy Skaggs' July 9, 2001, request 1 for copies of various records substantiating Menifee County's compliance with Kentucky's animal control statutes, including KRS 258.195, 2 for fiscal year 2000-2001. We find that the fiscal court violated KRS 61.880(1) by failing to respond, and that because no exception to public inspection exists for records substantiating county compliance with applicable animal control statutes, those records must be mailed to Mr. Skaggs. If no responsive records exist, the county must immediately so notify Mr. Skaggs in writing.
Having received no response to his July 9 request, Mr. Skaggs initiated this appeal on August 22, 2001. 3 On August 28, 2001, two days after the appeal was received in this office, the Attorney General mailed a copy of his request letter and his letter of appeal, along with our notification of receipt of open records appeal, to the Menifee County Judge/Executive and the Menifee County Attorney. Although the 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 fiscal court has taken any action relative to Mr. Skaggs' request.
The Menifee County Fiscal Court's failure to respond to Mr. Skaggs' July 9, 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 Menifee County Fiscal Court had not one, but two, opportunities to comply with KRS 61.880(1) by responding to Mr. Skaggs' original request, and by responding to his request upon receipt of this office's notification of appeal. The fiscal court failed to do so.
No legal basis for denying Mr. Skaggs access to records substantiating Menifee County's compliance with the animal control statutes is argued. The Kentucky Supreme Court has declared:
The public's right to know is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992) (emphasis added). The Menifee County Fiscal Court shall therefore immediately mail the records identified in the attached open records request to Mr. Skaggs, or to notify him 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 proceedings.
Randy SkaggsP. O. Box 1Webbville, KY 41180
Hershell L. SextonMenifee County Judge/ExecutiveP.O. Box 105Frenchburg, KY 40322
John NefzgerMenifee County AttorneyMain Street, CourthouseP. O. Box 56Frenchburg, KY 40322
Footnotes
Footnotes
1 A copy of Mr. Skaggs' July 9, 2001, request is attached.
2 KRS 258.195(1) provides, in part:
On or before July 1, 1954, the fiscal court of each county shall employ a dog warden. On or before July 1, 1955, the fiscal court of each county shall establish and maintain a dog pound as a means of facilitating [the] administration of this chapter.
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3 Mr. Skaggs' appeal was received on August 24, 2001.
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