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 Letcher County Fiscal Court violated the Open Records Act in failing to respond to L. M. (Mike) Caudill's July 3, 2003 request for records "concerning the location and construction of a transmission tower on or near the property of Letcher County Broadcasting, Inc. at Jenkins, Kentucky, on the Jenkins/Pound Mountain near the Kentucky and Virginia State Line." 1 He requested that the records provided "be certified by the appropriate records custodian in such manner that the same may be introduced as evidence in a Court of Law in the Commonwealth of Kentucky." Having received no response to his request, copies of which were directed to the Letcher County Judge/Executive and the Letcher County Attorney, Mr. Caudill initiated this open records appeal on August 27, 2003. For the reasons that follow, we find that the Letcher County Fiscal Court violated KRS 61.880(1) in failing to respond, and that having advanced no argument in support of denial of Mr. Caudill's request, the Fiscal Court should immediately provide him with copies of existing public records that are responsive to his request, upon pre-payment of reasonable copying and postage charges, or advise him if no responsive records exist.
On August 29, 2003, this office issued notification of Mr. Caudill's open records appeal to the Letcher County Judge/Executive and Letcher County Attorney. Although the notification clearly stated that pursuant to 40 KAR 1:030 Section 2 "the agency may respond to the appeal," we received no response to our notification and have not been advised that the Fiscal Court has taken any action relative to Mr. Caudill's request.
The Letcher County Fiscal Court's failure to respond to Mr. Caudill's request 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 at least two opportunities to comply with KRS 61.880(1): by responding to Mr. Caudill's original requests and by responding to his requests upon receipt of this office's Notification of Appeal. The Fiscal Court failed to do so. In construing KRS 61.880(1), the Kentucky Court of Appeals has declared:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 957 (1996). It follows that agency inaction is not a viable option.
No legal basis for denying Mr. Caudill's request is argued. Because the Fiscal Court is assigned the burden of proof in sustaining its actions under KRS 61.880(2)(c) and has advanced no legal argument supporting nondisclosure, we find, as a corollary to our decision that the Fiscal court violated KRS 61.880(1), that the requested records should be disclosed to Mr. Caudill without further delay. Accord, 03-ORD-182; 03-ORD-193. If, with regard to portions of Mr. Caudill's request, no responsive records exist, the Fiscal Court should immediately so notify Mr. Caudill in writing. Accord, 03-ORD-200. On this issue, the Attorney General has observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. [Citations omitted.]
02-ORD-144, p. 3, cited in 02-ORD-163, note 1. It is therefore incumbent on the Fiscal Court to ascertain whether records exist that are responsive to Mr. Caudill's request, to promptly advise him of its findings, and to release to him all existing records identified in his request.
It is not, however, incumbent on the Fiscal Court to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act. For this reason, the Attorney General has recognized the potential perils of using a request under the Act as a discovery tool. We have determined that:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provision in accordance with KRS 61.880.
OAG 89-65, p. 3. Nevertheless, we have stated that in making this determination, we did not intend to:
suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Record provisions, than for those obtained under discovery procedures.
Id. Accord, 96-ORD-138. Consistent with the reasoning set forth above, the Letcher County Fiscal Court must take immediate action to rectify its error in failing to respond to Mr. Caudill's request, but is not required to certify the records it produces in response to that request.
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 Specifically, Mr. Caudill requested access to records reflecting "all discussions and votes concerning the decision to construct a tower, to locate the tower in its present location, all permissions, license, easements, right of ways or other rights authorizing the construction of the tower and the connecting of all utilities;" "the minutes of the organizational meeting of the 911 Board, name and address of each person who is currently a 911 Board Member and each person who was [a] 911 Board Member at the time that any part of the procedure took place concerning the construction of the . . . 911 transmission tower and the capacity with which said person served/or serves on the 911 Board;" "discussions concerning the claims of Letcher County Broadcasting through G. C. Kincer or any other person representing the corporation that the aforesaid 911 tower was constructed on property belonging to Letcher County Broadcasting and/or request for payment for the right to so construct and maintain the 911 transmission tower. "