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 Campbell County Fiscal Court violated the Open Records Act in the disposition of James R. Hall's July 20, 2003 request for "a copy of any order, decree, proclamation, memorandum or other administrative command or request, issued by any agent of Campbell County government since January, 2001, that pertains to [the posted prohibition on firearms of any type in A. J. Jolly Park] and/or any similar weapons prohibitions at other Campbell County Parks." In his August 19, 2003 letter of appeal, Mr. Hall explained that his July 20 request was directed to Dennis Reller, Recreation Manager at A. J. Jolly Park, but stated that he had not received a response to this request or a follow-up inquiry. He asked that this office review the Fiscal Court's actions, and, additionally, that we determine "whether KRS Chapter 522 could be applied to the situation involving the continued posting of the firearms prohibition." For the reasons that follow, we find that the Fiscal Court's response was only partially consistent with the requirements of the Open Records Act, and constituted, to the extent of the deficiencies described below, a violation of the Act.
In supplemental correspondence directed to this office following commencement of Mr. Hall's appeal, Assistant Campbell County Attorney Paul H. Twehues, Jr. responded to Mr. Hall's complaint. He advised:
In a letter dated July 20, 2003, Mr. Hall made an open records request to "Dennis Reller, Recreation Manager" of the Campbell County Fiscal Court. The Recreation Manager is not the custodian of the requested records. He referred the request to Melissa Williams, who is the records custodian for the Campbell County Fiscal Court.
On the same date, July 20, 2003, Mr. Hall sent an open records request to "Sandra Mulligan, Campbell County Fiscal Court Clerk" (a copy of which is attached). Both letters, using different wording, requested the same records. She also referred the request to Melissa Williams.
July 20, 2003 was a Sunday; both letters were received by the Fiscal Court on Wednesday, July 23rd. On that date, Melissa Williams called Mr. Hall to tell him there was no such section as "94.04" and that she needed more information to respond to his request; she left a voice message for him to call her. On July 24th, Mr. Hall returned her telephone call. After a brief discussion, Mrs. Williams told Mr. Hall she would mail him the requested documents. On July 25, 2003, Mrs. Williams again called Mr. Hall and left a voice message for him. On that date, she also responded to his open records request by mailing him a letter with the requested documents attached to it. A copy of that letter and the attachments are attached to this response.
Both Mr. Reller and Ms. Mulligan followed the county's open records requests procedures and state law. The records custodian, Melissa Williams, not only responded within the three (3) day period, she also called Mr. Hall to try to determine which records he wanted. Therefore, we respectfully request that this appeal be dismissed.
In closing, Mr. Twehues expressed the view that Mr. Hall's request for a determination of the applicability of KRS Chapter 522 to the posting of firearms prohibitions "is beyond the scope of an open records appeal . . . ." While we agree with the latter statement, we do not agree that the Fiscal Court strictly "followed . . . state law" in responding to Mr. Hall's request or that his appeal should be dismissed.
We find that although the Campbell County Fiscal Court issued a timely written response to Mr. Hall, that response was only partially dispositive of his requests. KRS 61.880(1) establishes procedural guidelines for agency response to open records requests. 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.
Although the Fiscal Court's July 25 response disposed of his request to Ms. Mulligan for a copy of "any ordinance, resolution, amendment, decree or other legislative act by the Campbell County Fiscal Court, from January, 2001, to present, that would apply specifically to Campbell County Ordinance 94.04 [sic]," it did not dispose of his request to Mr. Reller for a copy of "any order, decree, proclamation, memorandum or other administrative command or request, issued by any agent of Campbell County government since January, 2001, that pertains to [the posted prohibition on firearms of any type in A. J. Jolly Park] and/or any similar weapons prohibition at other Campbell County Parks."
In her July 25 response, Ms. Williams advised:
In regards to your records request that the Campbell County Fiscal Court received on 7/23/03, and that I discussed with you further in a phone conversation on 7/23/03, I am sending you a copy of County Ordinance 0-16-2001, passed and adopted on September 19, 2001 that amended section 14 of the County Ordinance 0-5-2000 concerning the rules and regulations of County Parks. I am also sending you the up to date Codified Chapter 94, that has all the current rules and regulations governing Parks and Recreation in Campbell County. You will find the section you want under 94.15(14).
Ms. Williams indicated that she was in receipt of a single request. She did not acknowledge receipt of a second request for any memorandum or other administrative command or request issued by any agent of Campbell County government since January, 2001, that pertains to the firearms ban in the parks. Nor did she indicate that she had conducted a search for records responsive to this request. Such records are different in kind from the records she produced, namely an ordinance and regulation, and may consist of memoranda analyzing the propriety of the firearm ban and/or the signage, notification to and from concerned officials concerning remedial action, and other internal memoranda, both pre-decisional and post-decisional, relating to the topic.
With regard to Mr. Hall's unanswered request, we find that it is incumbent on the Campbell County Fiscal Court to ascertain whether responsive records exist, to promptly advise Mr. Hall of its findings, and to release all nonexempt responsive records to him. If no responsive records exist, the Fiscal Court is obligated to affirmatively so advise Mr. Hall. On this issue, the Attorney General has opined:
[A]n agency's inability to produce records due to the 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; 01-ORD-59, p. 5; 01-ORD-220, p. 6. 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.
02-ORD-144, p. 3, cited in 02-ORD-163, note 1. If statutory bases exist for denying him access to any responsive records located, the Fiscal Court should promptly advise Mr. Hall and must articulate these bases in terms of the requirements of KRS 61.880(1). 1 The Campbell County Fiscal Court should take immediate steps to correct those deficiencies in the disposition of Mr. Hall's request.
As noted above, we do not address the question of whether KRS Chapter 522 applies to the continued posting of firearms prohibitions in Campbell County's parks inasmuch as that question exceeds the scope of the Attorney General's delegated authority in resolving open records disputes. See KRS 61.880(2)(a) ("The Attorney General shall . . . issue . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884").
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 In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
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, 858 (1996).