Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Magoffin County Judge Executive violated the Kentucky Open Records Act in the disposition of a request submitted by Clarence D. and Sue (Hamilton) Shackelford for specified "documentation pertaining to the establishment of a county road and later a ramp at SR 2020 on our property located at 840 Mash Fork Road...the right of way 'road' to the Hamilton-Adams Cemetery. " In failing to issue a written response within three business days of receipt, the Judge Executive violated KRS 61.880(1); the Judge Executive did not invoke KRS 61.872(4) or (5), the only exceptions to this rule, nor does the belated response of the Judge Executive contain the specificity envisioned by KRS 61.880(1). Although the Judge Executive substantially complied with KRS 61.872(4) in advising the Shackelfords that records like those requested may be located in the office of the "Magoffin County Court Clerk," his response is otherwise deficient.
By letter directed to Bill May, then Magoffin County Judge Executive, on December 6, 2006, the Shackelfords requested the following:
1. A dated copy of the original action by the county to designate the Hamilton-Adams Cemetery right of way into a part of the county road system.
2. A dated copy of a map of the county road system at the time the county made the action official.
3. A dated copy of the vote taken by the Fiscal Court members and any pertinent comments by the members present at the meeting.
4. A dated copy of any notification to us, as property owners of most of the cemetery road, that this action was proposed and/or already adopted by the county.
5. A dated copy of the Fiscal Court meeting [minutes] which show the date and place of the official Fiscal Court vote to approve use of county labor, equipment and funds to construct a map on our property.
6. A dated copy of any record that may show that you advised us of our legal right to approve or reject the construction on our property.
7. A dated copy of any letter or request sent [to] us requesting our written authorization to perform this work on our property.
8. A dated copy of Thomas Green's county or state permit to have this ramp connected to our property or his. He did not have a permit from the state for that ramp to be built when he came to your office.
Having received no response from his predecessor, the Shackelfords directed a letter to current Judge Executive Charles E. Hardin, M.D., on January 5, 2007, reiterating the request concerning the "illegal ramp, built by the county connecting our property to SR 2020 (Mash Fork Road), as well as documentation concerning the legal establishment of the Hamilton-Adams Cemetery Road." Also on January 5th, the Shackelfords initiated this appeal, noting they had not received a response of any kind to date.
Upon receiving notification of the Shackelfords' appeal from this office, Judge Executive Hardin ultimately responded, 1 advising the Shackelfords that he "assumed office on January 1, 2007[,]" and was in receipt of their request; Judge Executive Hardin then forwarded a copy of his response to this office upon request. As explained by Judge Executive Hardin:
The Fiscal Court conducts all of its official business in open court. These actions are recorded by the Magoffin County Court Clerk and housed in that office. Therefore, I would suggest that you begin with the records housed in the Clerk's office. Of course, my office will be happy to assist you in anyway possible, but due to several changes in the Magoffin County Judge-Executive's office over the last several years our records are somewhat sparse.
Although this response is not properly characterized as a denial, insofar as Judge Executive Hardin has not actually declined to honor the Shackelfords' request, his response lacks the specificity envisioned by KRS 61.880(1) and, therefore, is procedurally deficient.
As a public agency, the Judge Executive is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 2 More specifically, KRS 61.880(1) dictates the procedure that 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 observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106. By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); this is a fundamental premise of the Open Records Act underscored by the mandatory response time of KRS 61.880(1). Although the burden on the agency to respond within three working days is not infrequently an onerous one, the only exceptions to this general rule are codified at KRS 61.872(4) and (5), neither of which the Judge Executive invoked here. 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7. Public agencies may not elect a course of inaction. 3 Failing to respond in a timely and proper fashion constitutes a clear violation of KRS 61.880(1); compliance is a duty owed to the public just like any other. 03-ORD-067, p. 2, citing 93-ORD-125, p. 5.
Noticeably absent from the belated response of the Judge Executive are both any reference to the applicable statutory exception(s) and the requisite brief explanation of how the exception(s) applies, if any. A public agency must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
To date, the Judge Executive has failed to provide a sufficiently detailed response affirmatively indicating whether any existing records in his custody are responsive and/or specifying which records do not exist, 4 and which records, if any, to which access is being denied; the Judge Executive has therefore necessarily failed to satisfy his burden of proof. 5 Accordingly, the Judge Executive must provide the Shackelfords with copies of any existing records in the custody of his office which are responsive to his request unless the Judge Executive can satisfy his burden of proof by articulating a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (m). Pursuant to KRS 61.872(3)(b), the official records custodian for the Judge Executive "shall mail the copies upon receipt of all fees and the cost of mailing." If the Judge Executive does not have custody or control of any records identified in the Shackelfords' request, the Judge Executive "shall notify [the Shackelfords] and shall furnish the name and location of the official custodian of the agency's public records" in accordance with KRS 61.872(4). To avoid future violations, the Judge Executive should be guided by the longstanding principle that 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." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
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.
Clarence D. and Sue Shackelford
Charles E. Hardin, M.D.Magoffin County Judge ExecutiveP.O. Box 430Salyersville, KY 41465
Donald W. McFarlandMagoffin County AttorneyP.O. Box 464Salyersville, KY 41465-0464
Footnotes
Footnotes
1 At this juncture, we remind the Judge Executive that a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, the Attorney General considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the original denial of the agency. Id.
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2 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
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3 Although the office was in a period of transition, and Judge Executive Hardin is not responsible for the errors and omissions of his predecessor, the delay in responding upon receipt of the Shackelfords' second request is not excusable simply because of the unusual timing. On this issue, 05-ORD-064 (pp. 3-6), a copy of which is attached hereto and incorporated by reference, is controlling.
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4 With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records or those which it does not possess, the analysis contained in 05-ORD-108, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented.
5 Nothing in the record indicates a lack of good faith on the part of Judge Executive Hardin nor is there any reason to question his veracity.
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