Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Housing Authority of Maysville violated the Open Records Act by failing to address that portion of Jeremy R. Germann's July 2, 2008, records application in which he requested "[a] copy of the minutes/ notes/questions/and scoring sheets taken during the interview process" for the position of Director of the Authority. Although the Authority belatedly 1 provided him with the applicants' resumes and applications and the advertisements, and correspondence related thereto, he requested, the Authority did not advise him whether records responsive to his request for minutes, notes, questions, and scoring sheets taken during the interview process exist. The minutes to which he was afforded access at an even later date were minutes taken at a meeting of the Authority's Board of Directors during which the Board approved the previously selected applicant, and were not responsive to his request. We therefore find that the Authority violated KRS 61.880(1) in failing to notify Mr. Germann whether records responsive to that portion of his request exist, whether the Authority would comply with the request, and, if not, the statutory basis for denying him access.
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.
In construing 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, 926 S.W.2d 826, (Ky. App. 1996). While the Authority addressed two of Mr. Germann's three requests by providing him with responsive records, it all but ignored his third request, providing him with a nonresponsive record, namely, minutes of a Board of Directors' meeting at which the selected applicant was approved, rather than minutes taken during the interview process, and nothing else.
Because the Authority did not address this portion of Mr. Germann's request, we are left to wonder whether responsive records exist. If so, those minutes, notes, questions, and scoring sheets should be disclosed to him, the Authority having failed to assert any statutory exception authorizing nondisclosure. If not, it is incumbent on the Authority to so advise Mr. Germann. As the Attorney General has frequently observed:
[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 [other 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 clearly so state is deficient. [Citations omitted.]
02-ORD-144, p. 3. Under this line of reasoning, we find that the Authority violated KRS 61.880(1) in failing to respond to this portion of Mr. Germann's request, and that it will continue to be in violation of this statute until it notifies him, in writing, that he can access these records or that no responsive records exist.
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.
Jeremy R. GermannMelissa HumphriesJerry Ormos, ChairSusan Brammer
Footnotes
Footnotes
1 Mr. Germann submitted his request on July 2, 2008. The Authority released the requested records to him, minus the minutes, notes, questions, and scoring sheets from the interviews, on July 21, 2008. Although part of the delay was occasioned by confusion as to Mr. Germann's mailing address, the response time exceeded the three business day statutory deadline by several days in contravention of KRS 61.880(1).
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