Request By:
Bonnie L. Dunlop
University of Louisville
School of Law
7935 Stovall Court
Louisville, KY 40228Paul H. Thompson
Floyd County Judge/Executive
Floyd County Courthouse
Annex Bldg., Rm. 109
Prestonsburg, KY 41653Keith Bartley
149 S. Central Avenue
P.O. Box 1000
Prestonsburg, KY 41653
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 Floyd County fiscal Court violated the Open Records Act by failing to respond to Bonnie L. Dunlop's October 30, 2001 request 1 for copies of various records substantiating Floyd County's compliance with Kentucky's animal control statutes, including KRS 258.195, 2 "for the entire fiscal year of July 2000 through June 2001." (Emphasis in original.) We find that the fiscal court violated KRS 61.880(1) by failing to respond, and that because no known exception to public inspection exists for records substantiating compliance with applicable animal control statutes, those records must be mailed to Ms. Dunlop. If no responsive records exist, Floyd County must immediately so notify Ms. Dunlop in writing.
Having received no response to her October 30 request, Ms. Dunlop initiated this appeal on December 6, 2001. 3 On December 11, 2001, one day after the appeal was received in this office, the Attorney General issued a notification of receipt of open records appeal to the Floyd County Judge/Executive and the Floyd County Attorney. Although this 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 Ms. Dunlop's request. In a telephone conversation with the undersigned conducted on December 21, 2001, Ms. Dunlop confirmed that as of that date she had received no response from the Floyd County Fiscal Court.
The Floyd County Fiscal Court's failure to respond to Ms. Dunlop's October 30 request in a proper and timely fashion constituted 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 Floyd County Fiscal Court had not one, but two, opportunities to comply with KRS 61.880(1) by responding to Ms. Dunlop's original request, and by responding to her request upon receipt of this office's notification of appeal. The fiscal court failed to do so. Our conclusion is not altered by the fact that the fiscal court responded, in whole or in part, to a nearly identical request submitted by another requester in 2001. This response did not relieve Floyd County of its statutory duty to respond in writing, and within three business days, to Ms. Dunlop's request, and to furnish her with the records identified in her request, or cite the exception authorizing nondisclosure and briefly explain its application to the records withheld.
No legal basis for denying Ms. Dunlop access to records substantiating Floyd 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 Floyd County Fiscal Court shall therefore immediately mail the records identified in the attached open records request to Ms. Dunlop, or notify her 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.
Footnotes
Footnotes
1 A copy of Ms. Dunlop's October 30, 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.
3 Ms. Dunlop's appeal was received on December 10, 2001.