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 Muhlenberg County Fiscal Court violated the Open Records Act by failing to respond to Randy Skaggs's February 11, 2003 request for financial records 1 relating to the dog warden's yearly compensation and the dog pound's yearly operational costs for fiscal year 2001-2002. We find that the fiscal court violated KRS 61.880(1) by failing to respond, and that because no exception exists for financial records documenting compensation and operational costs associated with county animal control, those records must be mailed to Mr. Skaggs without further delay. If no responsive records exist, the fiscal court must immediately so notify Mr. Skaggs in writing.
Having received no response to his February 11 request, Mr. Skaggs initiated this appeal on March 3, 2003. 2 On the following business day, the Attorney General mailed a copy of his written request and his letter of appeal, along with our notification of receipt of open records appeal, to the County Judge/Executive and the County Attorney. Although the notification clearly stated 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's request.
The fiscal court's failure to respond to Mr. Skaggs's February 11 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 fiscal court had two opportunities to comply with KRS 61.880(1), first by responding to Mr. Skaggs's original request and second by responding to his request upon receipt of this office's notification of appeal. The fiscal court failed to do so. 3
No legal basis for denying Mr. Skaggs access to records substantiating expenditures made in complying with KRS 258.195(1), 4 relating to animal control, is asserted. 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 Company, Ky., 826 S.W.2d 324, 328 (1992) (emphasis added). Disclosure of the records Mr. Skaggs seeks will clearly advance an open records related public purpose by enabling the public to monitor the fiscal court's compliance with KRS 258.195(1). The fiscal court must therefore immediately mail the records identified in Mr. Skaggs's request, quoted at note 1 above, or notify him in writing that no responsive records exist. Continued inaction is not an option under the law.
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.
Footnotes
Footnotes
1 Those records were specifically identified as:
(1) financial records or documentation indicating, referring to or pertaining to the "dog warden's" yearly compensation:
a. the dog warden's weekly or monthly salary or compensation plus a total indicating their complete and combined annual monetary compensation (we need either copies of cancelled checks -- including check number and date issued -- or a computer readout of the employee's payroll records -- including check number and date issued, etc.) for the entire fiscal year of 2001-2002.
(2) financial records or documentation indicating, referring to or pertaining to the "dog pound's yearly operational costs:
a. the amount of money paid out by the county or that it spent altogether on the operation of its own dog pound or either paid to another county, individual or organization for the usage of their dog pound or kennels for the entire fiscal year (including a comprehensive tally and categorical itemization of those yearly expenditures if county owned and operated); we need either copies of cancelled checks, receipts, appropriation ledgers or specific and verifiable bookkeeping entries showing payment (which would also include individual check numbers and dates written) by the county for the year-round operation of its own dog pound or for payments made to another county, individual or organization for the services of a dog pound for the entire fiscal year of 2001-2002.
2 Given the volume of appeals submitted by Mr. Skaggs on March 3, the Attorney General invoked KRS 61.880(2)(b)3 and extended the 20 working day time limit for issuing his decision by an additional 30 working days.
3 In 2001, this office issued a nearly identical open records decision to the fiscal court, determining that the fiscal court violated the Open Records Act in failing to respond to an open records request submitted by Mr. Skaggs in that year. That decision, which was not appealed to the circuit court per KRS 61.880(5)(a), "[has] the force and effect of law and [is] enforceable in the Circuit Court of the County where the public agency has its principal place of business or the Circuit Court of the County where the public record is maintained." It is the law in that circuit and stands as legal precedent for subsequent decisions of this office.
4 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.