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 Carter 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. For the reasons that follow, we find that the fiscal court's disposition of Mr. Skaggs' request was both procedurally and substantively deficient, and that it will remain in continuing violation of the Open Records Act until such time as it locates and provides Mr. Skaggs with copies of the records identified in his request, 2 or, alternatively, notifies him, in writing, that no records can be located that are responsive to his request. 3
On June 12, Mr. Skaggs requested that the Carter County Fiscal Court mail him copies of records 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"
Having received no response to his request, Mr. Skaggs initiated this appeal on September 7, 2006. Given the volume of open records appeals he submitted on September 7, the Attorney General invoked KRS 61.880(2)(b)3. and extended the twenty working day time limit for issuing his decision by an additional thirty working days.
On September 15, 2006, Carter County Judge/Executive Charles Wallace responded to this office's notification of appeal, advising us that his office "never received any form of this letter in the mail. " By letter dated September 20, 2006, we urged the Carter County Fiscal Court to immediately issue a written response to Mr. Skaggs' June 12 request and forward a copy of that written response to the undersigned Assistant Attorney General. Continuing, we observed:
If the Carter County Fiscal Court maintains nonexempt public records that are responsive to Mr. Skaggs' request, we trust that you will provide him with copies of those records at a cost of no more than ten cents per page, plus postage. If the Carter County Fiscal Court maintains records that are responsive to Mr. Skaggs' request, but for which a statutory exemption is claimed, we trust that you will so notify Mr. Skaggs, citing the statutory exemption upon which you rely and explaining how it applies to the record[s] withheld. If the Carter County Fiscal Court does not maintain records that are responsive to any or all of Mr. Skaggs' request, we trust that you will no notify him in writing.
The record on appeal is devoid of any evidence that the fiscal court followed this proposed course of conduct, or that it took any subsequent action in this regard.
The fiscal court's failure to fully and finally respond to Mr. Skaggs' June 12 request 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.
The fiscal court had at least two opportunities to comply with KRS 61.880(1): first, by responding to Mr. Skaggs' original request upon receipt of this office's notification of appeal; and second, by implementing the course of action suggested by the Attorney General in his September 20 letter. The fiscal court failed to do so.
No legal basis for denying Mr. Skaggs access to financial and operational records generated in the process of complying with KRS 258.195 is asserted and none is known to exist. The Kentucky Supreme Court has declared:
The public's right to know is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 328 (1992) (emphasis added). Disclosure of the records Mr. Skaggs seeks will clearly advance an open records related public purpose by enabling the public to monitor the fiscal court's compliance with KRS 258.195. The fiscal court must therefore immediately mail the records identified in Mr. Skaggs' request to him or notify him in writing that no responsive records exist. Continued inaction is not an option under the law.
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 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.
2 The fiscal court may, of course, require advance payment of a reasonable copying fee, not to exceed ten cents per page, and postage charges for reproduction and mailing of the requested records. KRS 61.872(3)(b); Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); 01-ORD-136.
3 This conclusion presupposes that the agency has conducted an adequate search for responsive records. At page 7 of 95-ORD-96, this office determined that an agency "must make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested."