Request By:
Larry Tyus
3719 Parker Avenue
Louisville, KY 40212Suzanne P. Cordery
Assistant Jefferson County Attorney
400 South Sixth Street
Louisville, KY 40202William P. O'Brien
Director of the Civil Division
Jefferson County Attorney's Office
1001 Fiscal Court Building
531 Court Place
Louisville, KY 40202
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Department of Corrections violated the Open Records Act in the disposition of Larry Tyus' December 25, 2003 request for the following records: "the inundated copy of the complaint that I filed with Lt. Alien of the department internal affairs department. I also request any finding and actions taken if any by the department." For the reasons that follow, we find that the failure to respond to all portions of Mr. Tyus' request constituted a violation of the Act
By letter dated January 7, 2004, Lt. Kenneth E. Allen, Sr., responded to Mr. Tyus' request, advising:
Enclosed is the copy of your written and tape-recorded complaint you filed with this office April 2, 2003 at 1106 hours. If you have any questions feel free to call my office at 574-8885, Monday through Friday 8:00am to 4:30pm.
In a letter to this office, dated January 9, 2004, Mr. Tyus complained that the Department had failed to respond to that portion of his request for "any fact finding information as well as any action taken by the department concerns my complaints."
We are asked to determine whether the Department's response violated the Open Records Act. For the reasons that follow, we conclude the failure to respond to all portions of Mr. Tyus' request constituted a violation of the Act.
We noted at the outset that the Department provided Mr. Tyus with copies of the requested complaint. Thus, the appeal as to that record is moot. 40 KAR 1:030, Section 6.
However, the Department failed to address that portion of his request that asked for "any finding and actions taken if any by the department.." In responding to an open records request, it is incumbent on the Department to ascertain whether those records exist, to promptly advise Mr. Tyus of its findings, and to release to Mr. Tyus all nonexempt responsive records. If no additional responsive records exist, the Department is obligated to affirmatively so advise Mr. Tyus. 03-ORD-212. The failure to address Mr. Tyus' request in its entirety constituted a violation of the Open Records Act. Accordingly, if it has not already done so, the Department should promptly respond to this portion of Mr. Tyus' request.
In his January 9, 2004 letter to this office, Mr. Tyus stated that the Department failed to timely respond to his request. The fax cover sheet attached to Mr. Tyus' letter of request indicates it was faxed on December 16, 2003. In her response to this issue, Ms. Cordery advised this office that the Department did not locate Mr. Tyus' request, which was undated, until December 29, 2003. She explained that delay in locating the request was due to the fact that Mr. Tyus apparently had faxed his open records request to the Metro Corrections general fax number. The Department's letter of response to Mr. Tyus, was dated January, 7, 2003. If an open records request is received at the wrong department or fax machine of an agency, procedures should be in place to ensure the prompt forwarding of the request to the appropriate custodian of records. See 01-ORD-140. The failure of the Department to respond within three-business days after its receipt constituted a procedural violation of KRS 61.880(1).
We do note that in his January 7, 2004 response to Mr. Tyus, Lt. Allen advised him that if he had any questions regarding the matter to give him a call. Lt. Allen provided his telephone number and his office hours. We encourage the parties to this appeal to work, in a spirit of cooperation, toward an amicable resolution of any remaining records access disputes.
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.