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 Earlington Police Department violated the Open Records Act in failing to respond to John Yarbrough's July 31, 2006, request "for the records that would show all invoices and purchase records for all video recording equipment used by Earlington Police Department since 2002 . . . includ[ing] camcorders, 'in car' video camera equipment, computers and computer software, as well as VCRs[, and indicating] the brand name, model number, features and capabilities of these devices [, as well as] the chapter in the owner's manual that shows the directions for dubbing from one camcorder to another . . .[, and] the record that would identify which camcorder or 'in-car' video camera was in which EPD vehicle in Oct. 2004." For the reasons that follow, we find that the Department's failure to respond constituted a violation of the Open Records Act.
In his letter of appeal, Mr. Yarbrough indicates that he received no response to his July 31 request, or to that portion of a January 3, 2005, request for similar records. 1 On August 24, 2006, this office sent a copy of Mr. Yarbrough's letter of appeal, along with our notification of receipt of his open records appeal, to Chief Craig Patterson, Earlington Police Department, and Christopher B. Oglesby, Earlington City Attorney. Although this notification clearly states that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no response, and have not been advised that the agency has taken any action on Mr. Yarbrough's request.
The Earlington Police Department's failure to respond to Mr. Yarbrough's open records requests in a proper and timely fashion constitutes 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 Earlington Police Department's failure to conform its conduct to the express requirements of the Open Records Act. The Department had not one, but two, opportunities to comply with KRS 61.880(1): by responding in writing, and within three business days, to Mr. Yarbrough's request, and by responding to his request upon receipt of this office's notification of appeal. The Department took no action.
In construing KRS 61.880(1) the Kentucky Court of Appeals has declared:
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). "A limited and perfunctory response," the court noted, does not "even remotely comply with the requirements of the Act - much less . . . amount[] to substantial compliance." Id. An agency's failure to respond in any fashion is especially egregious.
Having provided no response to his open records requests, and, thus, advanced no legal basis for denying Mr. Yarbrough access to the requested records, the Earlington Police Department is in clear violation of the Open Records Act. The corollary of this proposition is that the Department must disclose the requested records to Mr. Yarbrough or appeal this decision to the appropriate circuit court within thirty days of its receipt. KRS 61.880(5)(a). If the Department does not appeal this decision, but continues to withhold the records, the decision can be enforced in the appropriate circuit court. The circuit court has the power to award Mr. Yarbrough his costs for enforcement, including attorneys fees, and an amount not to exceed $ 25 per day for each day that he is denied access to the records. KRS 61.882(5).
The Earlington Police Department must make immediate arrangements for Mr. Yarbrough to inspect, or obtain copies of, the requested records, or alternatively, appeal this decision to the appropriate circuit court. Continued inaction is not an option. The Department's duty under the law is clear.
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 Mr. Yarbrough acknowledges receipt of a response to his January 3, 2005, request from Christopher B. Oglesby, Attorney for the City of Earlington, and encloses a copy of that response, but notes that Mr. Oglesby did not address his request for invoices and purchase records.