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 Finance and Administration Cabinet violated the Open Records Act in the disposition of McClellan Gaines' August 17, 2005, request for copies of "all contracts and agreements between Harrison County Jailer, Larry Turner, and Bourbon and Boone County Detention Centers (jails) and/or jailers, for the years 2003 to present." Mr. Gaines' request went unanswered prompting him to initiate this open records appeal. For the reasons that follow, we find that the Cabinet's disposition of Mr. Gaines' request was procedurally deficient but substantively correct.
In correspondence directed to this office following commencement of Mr. Gaines' appeal, the Cabinet's Executive Director, Joseph B. Howard, "respond[ed] to the aforementioned appeal of the denial of an open records request by the Finance and Administration Cabinet." Mr. Howard explained that the Cabinet "does not have possession of these records and any open records requests for such information should more properly be directed to the Fiscal Courts of Boone, Bourbon, and Harrison Counties respectively." He provided the mailing addresses for each of these public agencies, and transmitted a copy of his response to Mr. Gaines. It is the opinion of this office that although the Cabinet's ultimate disposition of Mr. Gaines' request satisfied the requirements set forth at KRS 61.872(4), its failure to respond to his request in writing, and within three business days of receipt of that request, constituted a violation of KRS 61.880(1).
Pursuant to KRS 61.872(4):
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
This provision must be read in tandem with KRS 61.880(1), requiring a public agency to which an open records request is directed to issue a written response within three business days. 1 Nothing in these statutes authorizes an agency to postpone its response, or otherwise obviates its statutory duties, because the agency is not the custodian of the records requested. Because the Cabinet failed to issue a written response within three business days of receipt of Mr. Gaines' request, 2 its disposition of that request was procedurally deficient.
Nevertheless, we affirm the Cabinet's ultimate disposition of Mr. Gaines' request. As noted, on those occasions when the public agency to which the request is directed "does not have custody or control of the public record requested," the agency discharges its statutory duty by "notify [ing] the applicant and . . . furnish [ing] the name and location of the official custodian of the agency" to which the request should be redirected. The Cabinet did so, albeit indirectly, by transmitting to Mr. Gaines a copy of the letter directed to this office in which it identified the agencies most likely to possess the records sought. While we encourage the Cabinet to review the cited provisions to insure that future responses strictly conform to the requirements of the Open Records Act, we find no error in its ultimate disposition of Mr. Gaines' request. Accord, 05-ORD-174.
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.
McClellan Gaines, # 167658Eastern Kentucky Correctional Complex, Dorm-5BL05200 Road to JusticeWest Liberty, KY 41472
Michael KalinyakExecutive DirectorOffice of the General Counsel, Room 383Finance and Administration CabinetCapitol Annex BuildingFrankfort, KY 40601
Joseph B. HowardExecutive DirectorFinance and Administration CabinetOffice of General Counsel374 Capitol AnnexFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.880(1) thus 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.
2 The Cabinet does not maintain that it did not receive Mr. Gaines' request.