Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Ramey Estep Home violated the Open Records Act in failing to respond to Steven J. Farmer's September 7, 2004, request for access to its manual of operating procedures, the "'no contact order'" prohibiting Mr. Farmer and a student residing in the home from exchanging mail or packages, and that page of its logbook reflecting "the Policy Change of 3:58 p.m., 9/03/04 and the original status of 8/31/04" relating to incoming calls from Mr. Farmer. (Emphasis in original.) For the reasons that follow, we find that the Ramey Estep Home violated KRS 61.880(1) in failing to respond to his request, and that unless the Home can articulate a statutory basis for denying Mr. Farmer access to these records, the records must be immediately disclosed to him.
On October 18, 2004, this office issued notification of Mr. Farmer's open records appeal to Jay Johnson, who was identified in a telephone conversation between an employee of this office and an employee at the Home as the person to whom open records inquiries should be directed, and to the Cabinet for Health and Family Services. 1 On behalf of the Cabinet, Assistant Counsel Jon R. Klein advised this office that "the Cabinet was not consulted about how to respond to Mr. Farmer's request, and none of the Cabinet's employees had knowledge of the request until receipt of the Open Records Appeal in this case." For this reason, Mr. Klein concluded "the Cabinet need not be a party to this Open Records Appeal." We received no response to our notification from the Ramey Estep Home and have not been advised that the Home has taken any action relative to Mr. Farmer's request.
In the absence of any proof that it is not a public agency for open records purposes, we find that the Ramey Estep Home's failure to respond to Mr. Farmer's request in a proper and timely fashion constituted 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.
This office has not been presented with any reason for the Home's failure to comply with the requirements of the Open Records Act. Assuming that the Home is a public agency and therefore subject to the Act, it is required to produce the requested records for inspection and copying or issue a written denial of the request to Mr. Farmer in which it cites the statute or statutes authorizing nondisclosure and briefly explain the application of the statute or statutes to the records withheld. Unless the Home can articulate a statutory basis for its refusal to release copies of these records, the records should be produced for his inspection or copies forwarded to him upon prepayment of a reasonable copying fee not to exceed ten cents per page, and postage charges. KRS 61.874(1).
As noted, our decision is predicated upon the assumption that the Ramey Estep Home is a public agency as defined at KRS 61.870(1), and, in particular, KRS 61.870(1)(h) defining the term public agency as "[a]ny body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." See 04-ORD-111 and authorities cited therein. Nothing in the record on appeal contradicts this assumption. Given the paucity of information in the record, it is unclear what percentage of its funding is derived from state or local authority funds. If, however, that percentage falls below the twenty-five percent threshold, the Home is not subject to the Open Records Act and is not required to honor Mr. Farmer's 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 Owing to an ambiguity in the original appeal, notification was first issued to representatives of Ramey Estep High School and the school district. Upon receipt of that notification, Mr. Farmer advised this office that "the Ramey Estep Home, not High School, is in possession of the requested logbook, no-contact order and S.O.P. manual. " (Emphasis in original.) This office immediately issued a corrected notification to the Ramey Estep Home. In the interim, a representative of Ramey Estep High School corresponded with this office for the purpose of conclusively establishing that although "Ramey Estep High School exists on the property of, and services residents of the Ramey Estep Home[, t]he Ramey Estep Home is a youth institution which is organizationally and administratively distinct from the Boyd County School System." In support, the High School's representative submitted a copy of the Ramey Estep Home's corporate filing, printed from the Secretary of State's website, which identifies the Home as a non-profit corporation.