Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Cumberland violated the Open Records Act by failing to respond in writing, and within three business days, to Carl Hatfield's March 18, 2010, request for records relating to an investigation conducted by the Department of Labor into city police officers' "overtime credit" and records relating to "the city's eligibility to apply for grant funding to support an additional police officer." It is our decision that 09-ORD-137, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. In 09-ORD-137, this office stated, in unequivocal terms:
What is undisputed is that the city [of Cumberland] did not make a written response to either of Mr. Hatfield's requests as required by KRS 61.880(1). By this failure, the city committed a procedural violation of the Act.
This open records decision was not appealed to circuit court pursuant to KRS 61.880(5)(b) and therefore has "the force and effect of law." Nor was 10-ORD-003, a copy of which is also attached and also has "the force and effect of law." KRS 61.880(5)(b). In that decision, the Attorney General determined that the city failed to demonstrate, by clear and convincing evidence, that Mr. Hatfield's requests "are intended to disrupt other essential functions of the public agency," within the meaning of KRS 61.872(6), and that the city therefore could not refuse his requests on this basis. Accordingly, the City of Cumberland was statutorily obligated to respond to Mr. Hatfield's March 18 request. Its failure to do so constituted yet another violation of the Open Records Act.
This violation was not mitigated by the city's belated invitation to Mr. Hatfield to view and copy "[a]ll the information that [he] requested" during its 8:00 a.m. to 5:00 p.m. business hours. Mr. Hatfield indicates that his subsequent attempts to conduct onsite inspection met with resistance and that the records to which he was afforded access were only partially responsive. Here, as in 09-ORD-137, we remind the city and Mr. Hatfield:
With regard to the factual disputes as to whether Mr. Hatfield was afforded access to the records he requested, this office does not, in general, "act as a trier of fact" and therefore cannot conclusively resolve the dispute as to what occurred. 09-ORD-120, p. 2. On the face of the appeal, however, Mr. Hatfield was entitled to view the records. Since the City does not claim any exceptions to the duty to disclose public records under KRS 61.878, we can only conclude that to whatever extent the City failed to make the requested records available to Mr. Hatfield in the form in which it possessed them, it was in violation of KRS 61.872(1).
This holding applies with equal force to the facts in the appeal before us. If the City of Cumberland is dissatisfied with this resolution of the issues on appeal, the city may appeal this office's open records decision pursuant to KRS 61.880(5)(a). The city cannot, however, continue to disregard the legal requirements imposed on it by KRS 61.870 to 61.884.
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.
Carl R. HatfieldRobin SmithLoretta CornettSteven Parker Boggs