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 Waco Volunteer Fire Department violated the Open Records Act in its disposition of David S. Weinstein's open records requests for certain records of the Fire Department. For the reasons that follow, we find that the fire department's response was procedurally and substantively deficient, and unless it can affirmatively establish that it is not a "public agency, " as defined by KRS 61.870(1)(h), it must make the records available for Mr. Weinstein's inspection.
By letter dated April 1, 2003, Mr. Weinstein submitted the following request to the Fire Department:
Please be advised that I represent the Waco Ladies Auxiliary. Please accept this letter as my open records request. I am requesting that you provide me with copies of all financial records of the Waco Volunteer Fire Department from 1995 forward, all Minutes of meetings of your Governing Board from 1995 to date, copies of all Grant applications made to any agency whatsoever from 1995 to date and copies of your form 990's as filed with the IRS from 1995 to date.
Please be advised that it is my opinion under KRS 61.870(1)(h), the Waco Volunteer Fire Department is subject to the provision of Kentucky's Open Records and Open Meetings statutes. Those statues provide that the Waco Volunteer Fire Department is a public agency because it derives at least 25% of its funds from state or local authority funds or grants. Under KRS 61.872 these records shall be gathered, copied and transmitted in a timely manner. You are entitled to request from me the cost of reproduction and delivery and I accept personal responsibility for the reasonable expense of these copies. Please see that these items reach my items [sic] within the next ten (10) days.
I have also been advised that you have refused to allow anyone other than your trustees to attend meetings of the Fire Department's Governing Board. Again you are a public agency under KRS 61.870 and, therefore, you are subject to the provisions of KRS 61.805(2)(e) , required to have your meetings open to the public. It is possible that various members of the public, including members of the Waco Ladies Auxiliaries, may attend your meetings in the future. I ask that you consider these statutes and allow them to attend the meetings.
If there are any questions as to these requests, you are welcome to have your attorney contact me.
By letter dated April 10, 2003, Earl Ray Neal, counsel for the Fire Department, responded to Mr. Weinstein's request, advising:
Please be advised that I represent the Waco Volunteer Fire Department on a continuing basis. I have received your April 1, 2003 correspondence to Mr. Alexander. I understand that you are attempting to classify the Waco Volunteer Fire Department as a public agency for the purposes of Kentucky's Open Records and Open Meetings statutes.
Th Waco Volunteer Fire Department is not a public agency under KRS 61.870(1)(h). If you are in possession of information upon which you base your conclusion that the Waco Volunteer Fire Department is a public agency because it derives at least 25% of its funds from state or local authority, funds or grants, please forward that to my attention immediately. It is my opinion that the Waco Volunteer Fire Department is not subject to the provisions of Kentucky's Open Records and Open Meetings statutes.
In a letter, dated June 23, 2003, to Mr. Neal, Mr. Weinstein renewed his request for copies of the records described in his April 1, 2003 request. In his letter, he stated that he continued "to believe your client is subject to the open records statutes based upon its receipt of funds or grants from state and local authorities. "
In his letter of appeal, dated July 9, 2003, Mr. Weinstein indicated that as of that date, he had not received a response from the Fire Department to his June 23, 2003 request. He reiterated his belief that the Fire Department was a public agency as defined in KRS 61.870(1)(h), stating "the operating funds for that department being derived from local taxation and at least one rather large federal grant that we are aware of."
On July 14, 2003, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Fire Department by sending the Notification to both Mr. Alexander and Mr. Neal. A copy of the letter of appeal was attached to each. Each Notification stated that, pursuant to 40 KAR 1:030, Section 2, the agency may respond to the appeal. This office received no response.
We are asked to determine if the Fire Department violated the Open Records Act by failing to respond to Mr. Weinstein's request. For the reasons which follow, we conclude that the agency's actions were procedurally and substantively in violation of the Act.
In 96-ORD-120, copy attached, we described various types of fire departments. Addressing volunteer fire departments, we stated:
A fourth type of fire department is a volunteer fire department, sometimes organized as a nonprofit corporation, which is an independent organization, disassociated from the city or county, except insofar as a contractual relationship is concerned. The only way this type of fire department could be considered a public agency is if it derives at least 25% of its funds expended in the state from state or local authority funds. See KRS 61.870(1)(h) and 94-ORD-16, copy enclosed.
In 96-ORD-120, we found that the Dry Ridge Rural Volunteer Fire Department, Inc., was not a public agency because it was organized as a nonprofit corporation and established through its financial records that it received less than 16% of its funds expended in the state from state or local authority funds. See, also, 99-ORD-208, copy attached, in which we concluded that the McDaniels Volunteer Fire & Rescue Department had presented sufficient evidence to this office to establish it was not a public agency within the meaning of KRS 61.870(1)(h). Compare 00-ORD-93, where we found the Ludlow Fire Department fell into the fourth category of fire departments, i.e., volunteer fire departments, and the fire department acknowledged its status as a public agency for open records purposes because it received 25 percent or more of its funds from state or local authority funds.
In the instant appeal, the Fire Department has not presented any evidence to support its claim that it is not a public agency under KRS 61.870(1)(h).
KRS 61.880(2) provides in part that the burden of proof shall rest with the public agency denying the request. 94-ORD-51. Mr. Weinstein in his letters to the Fire Department and in his letter of appeal asserted his belief that department derives over twenty-five percent of its funds expended in the Commonwealth from local taxation or grants from state and local authorities. Mr. Neal, in his April 10, 2003, response on behalf of the agency, advised Mr. Weinstein that it was his opinion that the Fire Department was not a public agency under KRS 61.870(1)(h). The Fire Department has presented no evidence to establish that the agency receives less than twenty-five percent of its funds expended in the Commonwealth from state or local authorities. Thus, the agency has not met its burden of proof. In the absence of a response from the agency to the contrary, we will presume, for purposes of this appeal, that the Waco Volunteer Fire Department is a public agency subject to the Open Records Act. Unless the Fire Department can affirmatively establish that it is not a "public agency, " as defined by KRS 61.870(1)(h), it must make the records available for Mr. Weinstein's inspection.
KRS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request for access to documents made under the Open Records Act. KRS 61.880(1) 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.
Thus, unless the Fire Department can affirmatively establish that it is not a "public agency, " as defined by KRS 61.870(1)(h), it is subject to the procedural requirements of KRS 61.880(1) and must provide a written response to an open records request within three business days. It is unclear as to the date the Fire Department received Mr. Weinstein's April 1, 2003 request, to which it responded on April 10, 2003. To the extent it exceeded the three-day rule, it would constitute a violation of KRS 61.880(1). Likewise, the failure of the agency to respond at all to Mr. Weinstein's June 23, 2003 request was also a procedural violation of the Open Records Act.
"The procedural requirements of the Open Records Act, " this office has often observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p.5. Any public agency has the duty to respond to the request in writing within the statutorily mandated time frame. 95-ORD-114.
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.
David S. WeinsteinKlingman, Matheis, & Weinstein, PLLC310 West Liberty Street, Ste.300Louisville, KY 40202-3019
Roger Alexander228 Fike RoadWaco, KY 40385
Earl Ray NealDavis & Neal, PSC226 N. Second StreetP.O. Box 1060Richmond, KY 40476