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 inaction of the Jefferson County Public Administrator in relation to Gary Tucker's request for various records and information concerning Alice B. Norris' estate violated the Kentucky Open Records Act. Having received no response to his written request dated July 26, 2007, Mr. Tucker initiated this appeal by letter dated August 8, 2007. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Jefferson County Public Administrator Chris Meinhart advising him that pursuant to 40 KAR 1:030, Section 2, "the agency may respond to this appeal," and that any response on behalf of the agency "must be received no later than Friday, August 31, 2007," this office has not received a response as of this date nor has the Attorney General been advised that Mr. Meinhart has taken any action relative to Mr. Tucker's request. 1 Failing to respond in a timely and proper fashion, as expressly required by KRS 61.880(1), constitutes a violation of the Open Records Act. Having neglected to advance a statutory basis for his apparent denial, the Public Administrator must provide Mr. Tucker with copies of any existing records in his custody which are responsive to his request "upon receipt of all fees and the cost of mailing" 2 in accordance with KRS 61.872(3)(b). If, on the other hand, the Public Administrator does not have custody of the records in dispute, the Public Administrator must immediately so notify Mr. Tucker in writing and provide him with the name and location of the custodial agency per KRS 61.872(4).
As a public agency, the Public Administrator 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 under 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, the Public Administrator had two opportunities to discharge his statutory duty under KRS 61.880(1); first, upon receiving Mr. Tucker's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the Public Administrator did not issue a written response to Mr. Tucker's request until his belated response dated September 4, 2007, but received on September 11, 2007; his failure to respond within three business days, in writing, to Mr. Tucker's request constitutes a clear violation of KRS 61.880(1). Public agencies 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 the Public Administrator did not respond to Mr. Tucker's request, the Public Administrator necessarily failed to advance a legal argument in support of his apparent denial of that request. 3 On appeal, the Public Administrator declined to substantiate his position as requested by this office. 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, the Public Administrator must provide Mr. Tucker with copies of any existing records in his custody which are responsive to Tucker's request unless the Public Administrator can meet his burden of proof by articulating a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (n) or establish by objective proof that he is not a public agency within the meaning of KRS 61.870(1). Pursuant to KRS 61.872(3)(b) , the Public Administrator's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " If the Public Administrator "does not have custody or control" of any records identified in Mr. Tucker's request, the Public Administrator "shall notify [Mr. Tucker] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the Public Administrator performs these functions, he stands in violation of the Open Records Act.
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.
Footnotes
Footnotes
1 On September 11, 2007, the original deadline for this appeal, the undersigned counsel received a letter from the Public Administrator in which he apologized for the delay but offered no explanation. Relying upon Hardin County v. Valentine and Kentucky Central Life Insurance v. Park Broadcasting of Kentucky, Inc., the citations to which are not provided, the Public Administrator asserts that he is "neither a state officer nor a governing body as contemplated by KRS 61.870(1) without further elaboration; however, the Public Administrator offers to copy his "entire file, at [Mr. Tucker's] expense, and forward it on to him." The Public Administrator has "no interest in" allowing, "and will not allow Mr. Tucker to come to" his office to inspect records. In conclusion, the Public Administrator indicates that if "the copying of the file is amenable to Mr. Tucker and it meets with [this office's] approval," he will "have the entire file copied, submit the invoice to Mr. Tucker, and upon payment thereof, will deliver the copies to him. Mr. Tucker should be aware, copying charges at my office are $ .20 per page and there are roughly 300 pages in my file."
By letter dated September 17, 2007, this office advised the Public Administrator that Mr. Tucker's appeal would otherwise be moot per 40 KAR 1:030, Section 6, but the proposed copying fee presents a justiciable issue assuming that he is a public agency within the meaning of KRS 61.870(1). Based upon the limited evidence of record, the Attorney General was unable to conclusively resolve that threshold issue; accordingly, this office posed a series of questions to the Public Administrator in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, in order to facilitate review of this matter. Although the Public Administrator was asked to ensure that his written response was received by this office on or before October 5, 2007, this office has not received any response as of this date. In other words, the Public Administrator disregarded his third and final opportunity to substantiate his position. Absent objective proof to the contrary, this office must assume that the Public Administrator is a public agency.
2 In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page is a reasonable copying charge under the Open Records Act. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making copies is greater than ten cents per page, any copying charge which exceeds this amount is excessive. OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77; 98-ORD-95; 01-ORD-136; 05-ORD-214.
3 As in 96-ORD-206, we are "severely handicapped in conducting our review" by virtue of the agency's refusal to honor our written request for additional information. Quoting from an earlier decision, this office found:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, [footnote omitted], 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 imposed on the agency. We have received no supporting documentation to confirm the assertion[.]
96-ORD-206, citing 95-ORD-61, p. 5. Relying upon KRS 61.880(2)(c) and 40 KAR 1:030, Section 6, this office has observed that "[w]ithout this authority, the Attorney General's ability to render a reasoned open records decision is severely impaired." 96-ORD-106, p. 5. Because he "does not have authority to compel disclosure of the disputed records, his only recourse is to find against the public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future." Id. In both 95-ORD-61 and 96-ORD-206, the Attorney General concluded that the agencies whose denials were being challenged had not satisfied their burden of proof in sustaining those denials under KRS 61.880(2)(c); this office must reach the same conclusion in the instant appeal.