Request By:
Marvin Phipps, # 176844
Daryl K. Day
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lincoln County Attorney violated the Kentucky Open Records Act in failing to respond upon receipt of Marvin Phipps' request for a tax bill and information 1 related to a specified piece of property. Having received no response to his request dated February 8, 2008, Mr. Phipps initiated this appeal. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Lincoln County Attorney Daryl K. Day on March 17, 2008, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," this office has not received a response as of this date nor has the Attorney General been advised that the County Attorney has taken any action relative to Mr. Phipps' request. In our view, 07-ORD-220 and 05-ORD-190 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
As a public agency, the County Attorney 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 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 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 County Attorney had two opportunities to discharge his statutory duty under KRS 61.880(1); first, upon receiving Mr. Phipps' request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the County Attorney has not issued a written response to Mr. Phipps' request; his failure to respond in writing, within three business days, constitutes a clear violation of KRS 61.880(1). Public agencies such as the County Attorney 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 County Attorney did not respond to Mr. Phipps' request, the County Attorney necessarily failed to advance a legal argument in support of his apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." 2 That being the case, the County Attorney must provide Mr. Phipps with copies of any existing records in his custody which are responsive to Mr. Phipps' request unless the County Attorney can meet his burden of proof by articulating, in writing, a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the County Attorney's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 3 If the County Attorney "does not have custody or control" of any records identified in Mr. Phipps' request, the County Attorney "shall notify [Mr. Phipps] and shall furnish the name and location of the official custodian of the agency's public records. " KRS 61.872(4). Until the County Attorney 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 To the extent Mr. Phipps' request can properly be characterized as a request for information rather than specifically described public records, the County Attorney is not statutorily obligated to grant his request but is required to issue a written response citing the basis for denial. See 06-ORD-096, pp. 10-13, and 08-ORD-003, pp. 3-7, for the relevant analysis. By virtue of his confinement at Little Sandy Correctional Complex, Mr. Phipps is foreclosed from exercising his right to inspect any records which are potentially responsive to his request during the regular hours of the County Attorney in accordance with KRS 61.872(3)(a). That being the case, Mr. Phipps must "precisely describe" the records, aside from the tax bill, "which he wishes to access by mail. "
2 A public agency such as the County Attorney 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. As consistently 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.
3 If no records exist which are responsive to Mr. Phipps' request, the County Attorney must affirmatively indicate as much to Mr. Phipps in writing immediately. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the County Attorney must ascertain whether records exist which are responsive to Mr. Phipps' request, promptly advise him in writing of his findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.