Request By:
Art Anderson
P.O. Box 347
Nancy, KY 42544Shawn Crabtree
Executive Director
Lake Cumberland District Health Department
P.O. Box 800
Somerset, KY 42501Rosalie Wright
Records Custodian
Lake Cumberland District Health Department
P.O. Box 800
Somerset, KY 42501
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 actions of the Lake Cumberland District Health Department relative to the open records request of Art Anderson, dated September 22, 2003, for "a copy of any permit or inspection of the plumbing, septic system, waste disposal system, etc., for the property located at 326 Highway 3189 (Pulaski County Park Road) Nancy (Pulaski County), Kentucky, for Lots Nos. 2 and 3, pursuant to Kentucky's Open Records Statutes, KRS 61.870-61.884," violated the Open Records Act. For the reasons that follow, we find that, with the exception of certain procedural deficiencies, the Department's substantive actions did not violate the Act.
In his December 5, 2003 letter of appeal to this office, Mr. Anderson appealed the Department's "denial/failure to respond" to his September 22, 2003 request.
After receipt of notification of the appeal and a copy of the letter of appeal, Shawn Crabtree, Executive Director, Lake Cumberland District Health Department, provided this office with a response to the issues raised in the appeal. In his response, Mr. Crabtree advised:
We have received your notification of an appeal of our alleged denial of an open records request from Mr. Art Anderson, and in no way intended to deny Mr. Anderson this information. Our agency's Environmental Program has undergone substantial changes over the past year. The Environmental Director has retired and we are working to train someone in house to fill that position, and our Environmentalist who was assigned this portion of Pulaski County passed away unexpectedly in August of this year, leaving our department understaffed and at a loss for many of the situations he was handling.
Furthermore, the request was mailed to our Pulaski Health Center instead of the District Office where we have staff trained to reply to Open Records requests. Additionally, we did not consider the letter you attached a formal request. (We have attached a Request to Inspect Public Records form in Mr. Anderson's copy of this letter for his future use.)
We have searched our records dating from 1995 to the present under the name Gary and Lucy Girdler, 326 Highway 3189, Nancy, KY, and have been unable to find anything related to this property. Our records prior to 1995 are archived by year. (no records are archived by address), and we will need further information regarding the original property owner, contractor, builder, and the year the septic system was installed to complete an earlier record search.
We are anxious to respond to the request if we can identify the records requested. Please have Mr. Anderson contact us and make a formal request if he can supply the additional information.
We are asked to determine if the actions of the Department relative to Mr. Anderson's request violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of certain procedural deficiencies, the Department's substantive actions did not violate the Act.
We address first the Department's failure to timely respond to Mr. Anderson's September 22, 2003 request. KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days after its receipt. Mr. Robinson indicated in his December 5, 2003 letter of appeal, that he had received no response from the Department as of that date. The failure to respond in writing within the three day time limit was a procedural violation of KRS 61.880(1).
We address next the Department's response that its failure to timely respond was due to changes in personnel conditions at the agency, including having no personnel at the agency trained to reply to open records requests and because Mr. Anderson's request had been sent to the wrong address.
In 01-ORD-140, this office addressed the issue of a public agency having an official custodian of public records and, in the custodian's absence, the appointment of an acting custodian to respond to open records requests. At pages 5 and 6 of that decision, we explained:
. . . the Attorney General has recognized that in the event the official custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; see also, 96-ORD-185, p. 3 (holding that the Open Records Act "presumes the appointment of a records custodian 'who is responsible for the maintenance, care, and keeping of public records . . .,' KRS 61.870(5), as well as the timely processing of open records requests [(KRS 61.880(1)], and in his absence, the appointment of an alternate to fulfill his duties"). The three day statutory response time is not tolled by the absence of the agency's records custodian. 98-ORD-161, p. 3; see also, 00-ORD-226. It is incumbent on the Kenton County Fiscal Court, as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests. Any other interpretation of the provisions of the Open Records Law is, in our view, "clearly inconsistent with the natural and harmonious reading of KRS 61.870 [ et seq .] considering the overall purpose of the . . . Law," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), as well as the recognition that "the value of information is partly a function of time." Fiduccia , at 1041.
The failure to have an individual available to timely process open records requests was inconsistent with the requirements of the Open Records Act. If the request was received at the wrong address the Department should have timely responded to Mr. Anderson by either notifying him as to the proper address to submit his request or by making arrangements to forward the request to the appropriate custodian for a timely response. KRS 61.872(4) and (5). 01-ORD-243.
We address next the issue of whether Mr. Anderson submitted a proper open records request. In its response to the letter of appeal, the Department indicated that Mr. Anderson had not submitted a proper request on the Department's "Request to Inspect Public Records" form. The fact that Mr. Anderson did not use the agency's form in his open records application cannot serve as a valid basis for denying a request. In 94-ORD-101, this office held:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
94-ORD-101, p. 2, 3; see also OAG 76-588. To the extent, if any, the Department failed to honor any request because it was not submitted on a particular form, its actions were contrary to the requirements of the Open Records Act.
Addressing the substantive issues, the Department, in its response to the letter of appeal, advised this office and Mr. Anderson, by providing him with a copy of the response, that its search for the requested records dating from 1995 to the present under the name Gary and Lucy Girdler, 326 Highway 3189, Nancy, KY, had found no records relating to the property.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134; 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Department, as the result of its search of its records from 1995 to the present, advised Mr. Anderson that it did not have the records he requested or that none were found. Accordingly, we find no substantive violation of the Open Records Act in this regard.
Moreover, the Department further indicated in its response that its records prior to 1995 were archived by year and none of the records were archived by address. The Department advised Mr. Anderson that it would need "further information regarding the original property owner, contractor, builder, and the year the septic system was installed to complete an earlier record search." Accordingly, if he has not already done so, Mr. Anderson should provide the agency with any additional information that he might have that would assist the Department in locating the records he is seeking.
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.