Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Fayette County Legal Aid violated the Kentucky Open Records Act in failing to respond upon receipt of the request submitted by Winston Briscoe on April 20, 2006, for copies of "all file[] notes" relating to his case; Mr. Briscoe was apparently represented by Assistant Public Advocate V. Gene Lewter, to whom Mr. Briscoe directed his request, in the matter. Having received no response to his request, Mr. Briscoe initiated this appeal by letter dated May 3, 2006. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Mr. Lewter on May 8, 2006, advising him that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," this office has not received a response nor have we been advised that Legal Aid has taken any action relative to Mr. Briscoe's request. In our view, 03-ORD-182 and 00-ORD-6 (the decision upon which 03-ORD-182 is based), copies of which are attached hereto and incorporated by reference, are controlling on the facts presented.
As a public agency, Fayette County Legal Aid must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996)(emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id.; 01-ORD-183, pp. 2, 3. It logically follows that failing to respond constitutes a violation of the Act.
Here, Legal Aid had two opportunities to discharge its statutory duty under KRS 61.880(1); first, upon receiving Mr. Briscoe's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that Legal Aid has not issued a written response to Mr. Briscoe's request; its failure to respond in writing, within three business days, constitutes a clear violation of KRS 61.880(1). Public agencies such as Legal Aid are not permitted to elect a course of inaction. As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
Because Legal Aid did not respond to Mr. Briscoe's request, Legal Aid necessarily failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency, . . . ." That being the case, Legal Aid must provide Mr. Briscoe with copies of any existing records in its custody which are responsive to his request unless Legal Aid can meet its burden of proof by articulating a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), Legal Aid's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 1 If Legal Aid "does not have custody or control" of any records identified in Mr. Briscoe's request, Legal Aid "shall notify [Mr. Briscoe] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until Legal Aid performs these functions, it stands in violation of the Open Records Act. n2
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 party in that action or in any subsequent proceeding.
Winston Briscoe, # 142764Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
V. Gene Lewter111 Church StreetLexington, KY 40507-1102
Footnotes
Footnotes
1 If no records exist which areresponsive to portions of Mr. Briscoe's request, Legal Aid must affirmatively indicate as much in writing to Mr. Briscoe immediately. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, Legal Aid must ascertain whether records exist which are responsive to Mr. Briscoe's request and promptly advise him of its findings--nothing more, nothing less.