Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in failing to respond in writing within three business days to the request submitted by Chris Henson for "full and complete copies" of specified "offense/incident reports" that were generated from January 1, 2000, to February 24, 2005, as required by KRS 61.880(1). Although the KSP received Mr. Henson's request dated February 24, 2005, on March 7, 2005, as evidenced by the stamp from KSP Legal Services located on the copy of record, the KSP did not respond until June 8, 2005, at which time the KSP made the requested copies available to Mr. Henson contingent upon receipt of the copying fee and postage per KRS 61.874(1). By letter dated June 11, 2005, Mr. Henson initiated this appeal. Acknowledging that an appeal becomes moot if the public agency makes the records available to the requester after a complaint is filed, Mr. Henson nevertheless argues that the KSP "is delinquent in responding" to his written request by more than three months which constitutes a "serious violation of the procedural requirements set forth in KRS 61.880(1)."
Upon receiving notification of Mr. Henson's appeal from this office, Michael D. Triplett, Staff Attorney, responded on behalf of the KSP. As explained by Mr. Triplett:
During the period of time that Mr. Henson complains about our custodian of records was on maternity leave and some requests may have fallen through the cracks and were not complied with in a timely fashion. Mr. Henson's request appears to be one of those. He does not complain of any damages done to him, or any consequences of these documents arriving late. The fact is that Mr. Henson did receive the documents that he requested rendering his appeal moot, because his remedy has already been complied with.
In closing, Mr. Triplett apologizes for the delay in complying with Mr. Henson's request and advises this office that the KSP agrees to waive any fees that he may still owe.
By letter dated July 3, 2005, Mr. Henson contends that the he was unable to complete the assigned task in February and March because he did not receive the records in a timely manner. Correctly observing that the Attorney General is not authorized to award damages in this context, Mr. Henson declines the offer by KSP to waive any remaining fees in this matter.
In the event that the official custodian of records 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; 02-ORD-165, p. 3. On this procedural issue, the analysis contained at pp. 3-7 of 05-ORD-064, a copy of which is attached hereto and incorporated by reference, is controlling. However, 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that if access to public records for which inspection or copying is sought is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Absent objective evidence to the contrary, this office assumes that you have received copies of any existing records which are responsive to your request. That being the case, the Attorney General must decline to issue a decision addressing the remaining issues raised by your appeal.
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.