Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Laurel County Judge/Executive violated the Kentucky Open Records Act in the disposition of Shane Johnson's April 16, 2010, request "to inspect and copy . . . all information of the salaries for each full-time and part-time employee of the Laurel County Clerk's office paid with public funds from 1/1/07 to present" and "all information of any public funds (other than the funds paid pursuant to request # 1 above) paid to each full-time or part-time employee of the Laurel County Clerk's office paid from 1/1/07 to present," including "Per diem," reimbursement for travel costs, and bonuses. Upon receiving notification of Mr. Johnson's appeal from this office, Judge/Executive Lawrence Kuhl provided this office with a copy of his April 20, 2010, written response to Mr. Johnson, in which Mr. Kuhl advised that his office does "not handle their payroll." 1 Accordingly, Mr. Kuhl also notified Mr. Johnson that he needed to request such information from "Laurel County Clerk Dean Johnson, Laurel County Courthouse, 101 South Main Street, London, KY 40741," and returned the postal money order that Mr. Johnson had enclosed with his request. Based upon the following, this office finds no error in the Judge/Executive's disposition of Mr. Johnson's request.
As a public agency, the Judge/Executive is obligated to comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access generally speaking. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. 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.
(Emphasis added). To clarify, "the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, p. 3. Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 2 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days if the records are "in active use, in storage or not otherwise available."
In 96-ORD-207, the Attorney General observed the following in addressing the issue of whether a response was timely under the Act:
The computation of time statute, KRS 446.030(1)(a), which would be applicable to time requirements of the Open Records Act, reads as follows:
Id., p. 1.
Here, Mr. Johnson attached a copy of the U.S. Postal Service Certified Mail Receipt for an identical request he mailed to the Laurel County Clerk on April 16, 2010, with a postmark of that date, to his appeal; the copy of the Certified Mail Receipt documenting his request to the Judge/Executive does not have a visible postmark. However, both requests are dated April 16. Given that both Mr. Johnson's appeal(s) and the Judge/Executive's response to his request are dated April 20, it seems logical to assume that he mailed the identical requests on the same day, Friday, April 16, the day of the act or event after which the designated period of time began to run. In other words, Friday, April 16, 2010, would not be included in the computation; likewise, the intermediate Saturday (April 17) and Sunday (April 18) must be excluded from the computation. Thus, Monday, April 19, was the first business day after the Judge/Executive received Mr. Johnson's request; accordingly, the date on which the Judge/Executive mailed his response, April 20, was day two, and thus within the permissible statutory time frame of three business days. In sum, the Judge Executive complied with KRS 61.880(1) and this office has no basis upon which to find a violation of that provision. Rather, Mr. Johnson's appeal was premature. Because the Judge/Executive has already responded, this office will briefly address the remaining issue presented in the interest of efficiency.
Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." Here, the Judge/Executive affirmatively indicated that his office does not possess or maintain the records being sought, and provided Mr. Johnson with contact information for the official custodian of the records. Nothing else is required. The Judge/Executive fully complied with relevant provisions 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 a party in that action or in any subsequent proceeding.
Shane JohnsonLawrence KuhlElmer Cunnagin, Jr.
Footnotes
Footnotes
1 A public agency cannot produce for inspection or copying nonexistent records or those which it does not possess nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). See 07-ORD-188 and 07-ORD-190 for the relevant analysis.
2 02-ORD-165, p. 3.