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 Fayette County Legal Aid violated the Open Records Act in failing to respond to Robert J. Dunson's June 20, 2003 request for records "prepared, owned, [and] used in the preparation of [his] case 01-CR-422," including discovery motions and records relating to his suppression hearing. Mr. Dunson was apparently represented by Assistant Public Advocate Kate Dunn in this matter and his request was directed to Ms. Dunn. Having received no response to his request, Mr. Dunson initiated this open records appeal to the Attorney General questioning Legal Aid's failure to respond to his request in writing, and within three business days, and to afford him timely access to the records identified in that request. For the reasons that follow, we find that Legal Aid violated KRS 61.880(1) in failing to respond, and that, having failed to advance any argument in support of denial of Mr. Dunson's request, it must provide him with copies of the requested records upon prepayment of reasonable copying and postage charges.
On July 9, 2003, this office issued notification of Mr. Dunson's appeal to Ms. Dunn and Fayette County Legal Aid Director Joseph N. Barbieri. 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 Legal Aid has taken any action relative to Mr. Dunson's request.
Fayette County Legal Aid's failure to respond to Mr. Dunson's June 20 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.
Fayette County Legal Aid had two opportunities to comply with KRS 61.880(1) by responding to Mr. Dunson's original request and by responding to his request upon receipt of this office's Notification of appeal. Legal Aid failed to do so.
Although Fayette County Legal Aid has not been the subject of prior open records decisions, Legal Aid does not contest Mr. Dunson's right of access on the grounds that it is not a public agency for open records purposes. Based on this office's analysis of the status of the Louisville-Jefferson County Public Defender Corporation as a public agency for open records purposes in 00-ORD-6, a copy of which is attached hereto and incorporated by reference, it is unlikely that such a defense could be successfully raised. 00-ORD-6 (enclosed) ; see also 03-ORD-171 (enclosed) . Nor does Legal Aid assert a statutory basis for denying Mr. Dunson access to the records he seeks. Because Legal Aid is assigned the burden of proof in sustaining its actions under KRS 61.880(2)(c), and no legal argument has been advanced supporting nondisclosure, we have no alternative but to decide, as a corollary to our decision that Legal Aid violated KRS 61.880(1), that the requested records should be disclosed to Mr. Dunson upon receipt of reasonable copying and postage charges per KRS 61.872(3)(b) and KRS 61.874(1) and (3).
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.