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 Metcalfe County Fiscal Court violated the Open Records Act in the disposition of Randy Skaggs' June 12, 2006, request for financial and operational records relating to implementation of KRS 258.195 1 for the period from June 2005 through May 2006. Those records were identified as follows:
1. Records or documentation indicating, referring to, or pertaining to your county's "animal control officer"
2. Records or documentation indicating, referring to, or pertaining to your county's "animal control shelter"
3. Records or documentation indicating, referring to, or pertaining to your county's "application for financial help"
Although Mr. Skaggs agreed to prepay reasonable copying charges not to exceed ten cents per page, 2 and the cost of postage, he indicates that he received no response, of any kind, to his June 2006 request. In the absence of proof that the fiscal court responded to his 2006 request, we find that its inaction constituted a procedural and substantive violation of the Open Records Act. As a corollary of this decision, we find that because the fiscal court cites no statutory exception authorizing nondisclosure of the requested records, and none is known to exist, those records must be mailed to Mr. Skaggs without further delay. If no current responsive records exist, the fiscal court must immediately so notify Mr. Skaggs in writing.
By letter dated October 6, 2006, Metcalfe County Attorney Sharon Bowles Howard, acknowledged receipt of Mr. Skaggs' 2006 request, but advised this office that "all records were sent at the time of Skaggs' first request." Ms. Howard indicated that Judge/Executive Don M. Butler had informed her that "there are no other records available in Metcalfe County on the matter requested." She further indicated that "Metcalfe County has joined in an interlocal agreement with Adair County and Russell County in operating a facility for animals, " and that because the facility is located in Adair County, "all the records for the animal control facility are located" in Adair County.
In his letter of appeal, Mr. Skaggs states that he received no response to his June 12, 2006, request, of any kind, from the Metcalfe County Fiscal Court. The fiscal court's failure to respond to that 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.
The fact the fiscal court responded to Mr. Skaggs' "first request" did not relieve it of its obligation to respond to his most recent request of June 2006.
Mr. Skaggs submitted his first group of requests for public records relating to the counties' compliance with then-existing animal control laws in January 1998. He submitted a second group of requests in July 2001 and a third in February 2003. Since Mr. Skaggs submitted these requests, the laws governing animal control have dramatically changed, as evidenced in his June 12 request, and that request was prompted by his interest in determining the rate of compliance with current laws. The fiscal court does not indicate the date on which it entered into an interlocal agreement with Adair and Russell Counties for the operation of an animal shelter, but that interlocal agreement is responsive to Mr. Skaggs' June 12 request if it was not disclosed to him in response to his "first request," presumably his 1998 request. Assuming that all other responsive records reside in Adair County's custody, it was incumbent on the fiscal court to so advise him.
As noted, the record on appeal suggests that the Metcalfe County Fiscal Court responded to Mr. Skaggs "first request," presumably his 1998 request, but is devoid of proof that the fiscal court responded to Mr. Skaggs' June 12 request either before he initiated this appeal or after. The fiscal court is statutorily obligated to do so and to provide him with copies of any existing financial or operational records reflecting compliance with KRS 258.195. If it maintains no additional responsive records, the Metcalfe County Fiscal Court is statutorily obligated to so advise Mr. Skaggs in writing.
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.
Randy SkaggsP. O. Box 1Webbville, KY 41180
Donald M. Butler IIMetcalfe County Judge ExecutiveP.O. Box 149Edmonton, KY 42129
John Paul BlevinsMetcalfe County AttorneyP.O. Box 187Edmonton, KY 42129
Footnotes
Footnotes
1 KRS 258.195 provides as follows:
(1) The governing body of each county shall employ, appoint, or contract with an animal control officer, or shall contract with an entity that employs, appoints, or contracts with an animal control officer, and shall establish and maintain an animal shelter as a means of facilitating and administering KRS 258.095 to 258.500. One (1) or more counties may enter into intergovernmental agreements for the establishment of regional animal shelters, or may contract with entities authorized to maintain sheltering and animal control services. Animal shelters shall meet the standards provided by KRS 258.119(3)(b) within three (3) years after July 13, 2004. Governing bodies may adopt additional standards and ordinances related to public health, safety, enforcement, and the efficient and appropriate operation of their shelters and their animal control programs.
(2) Cities may employ, appoint, or contract with animal control officers, or may contract with an entity that employs, appoints, or contracts with animal control officers, for the enforcement of this chapter and local animal control ordinances within their corporate limits. Cities may enter into agreements with the counties for the enforcement of the county's animal control ordinances. The agreement shall include, but shall not necessarily be limited to, setting out the jurisdiction and the duties of the animal control officer respective to the agreement.
(3) Animal control officers shall have the authority to issue uniform citations, local citations, or local notices for the enforcement of the provisions of this chapter, the provisions of the Kentucky Revised Statutes relating to cruelty, mistreatment, or torture of animals, and animal control ordinances in their respective jurisdictions.