Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Greenup County Attorney violated the Open Records Act in failing to respond to the open records request of Joseph Charles Hill. For the reasons that follow, we conclude that the failure of the Office of the Greenup County Attorney to respond to Mr. Hill's open records request in a proper and timely fashion constituted a violation of KRS 61.880(1).
By letter dated October 4, 2002, Mr. Hill submitted a request to the Office of the Greenup County Attorney for the following records:
1. Number of cell phones owned, leased, or rented paid for by Greenup County Kentucky Attorney Office.
2. Names of people who used the phones.
3. Copies of cell phone bills since August 28, 2000.
4. A statement of the purposes of the cell phones.
5. Copies of phone line records for # (606) 473-7855 since August 28, 2000.
6. Copies of phone line records for # (606) 473-7842 since August 28 2002.
If these records are temporarily unavailable, please inform of earliest date when I may inspect them. I also request proper Greenup County Attorney staff to locate and copy the information requested and mail a copy of the (6) aforesaid request to the address below. I understand that I will have to pay the actual cost of making the copies.
In his letter of appeal dated November 15, 2002, Mr. Hill indicated that the Office of the Greenup County Attorney had not responded to his request in any way.
We are asked to determine whether the failure of the Office of the Greenup County Attorney to respond to Mr. Hill's request violated the Open Records Act. For the reasons that follow, we conclude that it did.
In his letter of appeal, dated November 15, 2002, Mr. Hill indicated that the Office of the Greenup County Attorney had not responded to his request in any way. On December 18, 2002, this office sent a copy of Mr. Hill's letter of appeal, along with our notification of receipt of open records appeal, to Michael C. Wilson, Greenup County Attorney. We received no response to our notification, and have not been advised that the agency has taken any action relative to Mr. Hill's request.
The Office of the Greenup County Attorney's failure to respond to Mr. Hill's open records requests 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 agency had not one but two opportunities to comply with KRS 61.880(1) by responding to Mr. Hill's original request and by responding to his request upon receipt of this office's notification of appeal. The agency failed to do so. Having provided no response to Mr. Hill's open records request, the agency has failed to advance any legally recognized argument in support of its failure to respond to the request. Unless it can do so, it is obligated to make the records available for Mr. Hill's inspection, if he both lives and works in Greenup County, or furnish him with copies of those records, if his residence or principal place of business is outside Greenup County. KRS 61.872(3)(b). A public agency cannot elect a course of inaction.
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 proceeding.