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 Letcher County Judge/Executive violated the Open Records Act in the disposition of Curtis and Nina Cornett's September 25 and October 9, 2008, requests for records relating to Letcher County Water/Sewer Chairman Seth Long. For the reasons that follow, we find that the Letcher County Judge/Executive violated KRS 61.880(1) in failing to respond to the Cornetts' request in writing, and within three business days, but that his belated response otherwise satisfied the requirements of the Open Records Act.
In their September 25 and October 9 requests, the Cornetts sought access to: 1) audio tapes of the April through September 2008 Letcher County Fiscal Court meetings; 2) transcripts of those meetings; 3) the "document mentioned in the 15 September 2008 Fiscal Court meeting which shows the ending date of the term of the Letcher County Water/Sewer Chairman, Seth Long, along with information on how the document was obtained;" and 4) any other documents relating to Seth Long's termination. On appeal, the Cornetts acknowledged receipt of "part of the material requested under items one and two," but requested review of the Judge/Executive's failure to produce records responsive to items three and four.
In a response dated November 18, 2008, Letcher County Attorney Harold D. Bolling provided this office and the Cornetts with a copy of the document responsive to item three of their request, explaining that it "list[ed] the Letcher County Water and Sewer District's members and the date of the expiration of their terms." He noted that the document "was obtained on-line from the Kentucky Public Service Commission by Letcher County Judge/Executive Jim Ward." With reference to the Cornetts' request for other documents "bearing on the issue of the termination of Seth Long," Mr. Bolling advised:
Seth Long was not terminated as he was not an employee of the Letcher County Water and Sewer District. Mr. Long was a Water District Commissioner, and the issue as to whether he was properly appointed to that position was raised by the Letcher County Judge/Executive. A search of the Letcher County Fiscal Court minutes indicated that former County Judge/Executive, Carroll Smith had never presented Mr. Long's nomination to the Fiscal Court for its official appointment.
Mr. Bolling concluded that as Letcher County Attorney, he "gave the opinion that the statutory procedure was not followed," and that therefore "Mr. Long was not lawfully appointed a commissioner and . . . the seat was vacant." Although he did not expressly so indicate, we assume from his statements that there are no records responsive to the fourth item of the Cornetts' request. 1
The Letcher County Judge/Executive violated the Open Records Act in failing to respond to the Cornetts' requests in writing, and within three business days of receipt, as required by KRS 61.880(1). Mr. Bolling does not refute this allegation on the County Judge's behalf or offer any explanation for the omission. We urge the County Judge/Executive to review KRS 61.880(1) to insure compliance with future open records requests.
We find no violation in the County Judge/Executive's belated denial of that portion of the Cornetts' records request relating to "the issue of the termination of Seth Long." 2 Mr. Bolling explained that no responsive records exist because Mr. Long "was not terminated. " In so doing, he provided a plausible explanation for the nonexistence of the records. Conversely, the Cornetts provide no proof of the existence of the record. Under these circumstances, the County Judge/Executive's disposition of the Cornetts' requests must be analyzed under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005).
In 07-ORD-188, the Attorney General applied the Bowling rule to an appeal arising from facts similar to the facts before us. A copy of 07-ORD-188 is attached hereto and incorporated by reference. Here, as in 07-ORD-188, we find that in the absence of a prima facie 3 showing that records responsive to item 4 exist we must affirm the Letcher County Judge/Executive's denial of the Cornetts' request based on the nonexistence of responsive records.
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 We must also assume that Mr. Bolling's legal opinion on Mr. Long's status was not reduced to writing. If such a writing existed, it would clearly qualify as a public record though not necessarily an open record.
2 Because the County Judge belatedly released the document identified in item 3, the issue of access to that document is moot. See 40 KAR 1:030 Section 6.
3 As we noted in 07-ORD-188, Black's Law Dictionary, 1071 (5th ed. 1979) defines the term prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."