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 a somewhat convoluted open records appeal, and the Attorney General being sufficiently advised, we find that Rockcastle County Fiscal Court violated the Open Records Act by failing to respond to a revised open records request submitted by Michael Sheliga as a follow-up to his equally convoluted May 14, 2010, request. Because the record on appeal does not contain a copy of the Fiscal Court's response(s) to Mr. Sheliga's March 26, 2010, request and his April 16, 2010, "updated" request, notwithstanding his assertion that copies were enclosed, we are foreclosed from considering any issues relating thereto by virtue of 40 KAR 1:030 Section. 1. 1
On appeal from the Fiscal Court's disposition of his May 14 requests, Mr. Sheliga explains:
I requested records about the following subjects and received the following responses:
1) Use of $ 2500 in tickets for the 2008 Music Hall of Fame (HOF) Induction Ceremony. [Disputed response]
2) Permission or Assistance for RCIDA Property Purchases [Disputed Response covering all properties below]
2A) North Side Inn (on Richmond Street)
2B) North Side Inn Furniture. [Received Direct Response - Not Under Appeal]
2C) House Next to North Side Inn (on Richmond Street)
2D) The Jones Building.
Unnumbered: Vote Establishing RCIDA's existence. [No Response]
I feel the response I received was deficient for the following reasons:
(1) I have not received a reply to my revised request within 3 business days.
(2) In my revised request (but not the original request) I specifically asked for "a record of the vote that established RCIDA's existence." Such a record is a public record. I have not been told why I have been denied access to this record and feel that I should have been given a reply. [However, since I have obtained this record from other sources I will agree to put aside this matter.]
(3) I have not received all records that indicate the fiscal court gave RCIDA "permission or assistance" to purchase the indicated properties.
As I have found to be true in numerous cases, while the [County Judge/Executive's] statements in his reply to my first request are literally true, there seems to be a lack of candor in them.
Mr. Sheliga then provides examples of this purported lack of candor.
In correspondence directed to Mr. Sheliga and copied to this office following commencement of Mr. Sheliga's appeal, Judge Buzz Carloftis characterizes Mr. Sheliga's statement that his responses exhibit "a lack of candor" as "one of the most absurd statements [he has] yet read," indicating that he does "not plan to continue responding to [the] same requests simply because [Mr. Sheliga] disagree[s] or fail[s] to fully understand and comprehend them." He then provides narrative responses to those requests Mr. Sheliga identifies as in dispute. While we appreciate Judge Carloftis's efforts in this regard, we find that until the Fiscal Court provides supporting documentation, such as the minutes of the March 1, 1977, meeting at which the Rockcastle County Fiscal Court established the RCIDA, referenced in Judge Carloftis's response, or clearly states that no responsive record exists, as is apparently the case with respect to Mr. Sheliga's request for records indicating how RCIDA was given permission to purchase certain properties, its duties under the Open Records Act will not be fully discharged.
We will not unnecessarily lengthen this open records decision with a review of KRS 61.880(1) . That statute, as the parties know, establishes requirements for agency response to an open records request. Mr. Sheliga is an experienced open records applicant, having submitted six open records appeals in some eight months. The Rockcastle County Fiscal Court is aware of its statutory obligations having responded to Mr. Sheliga's May 14 request. Nevertheless, that response was deficient insofar as it did not fully address the request and consisted of narrative responses rather than responsive records or a clear statement that no responsive records exist. Moreover, the Fiscal Court failed to respond to Mr. Sheliga's updated May 14 request in contravention of KRS 61.880(1). Recognizing that Mr. Sheliga's requests are less than a model of clarity, and that the deficiencies in the agency's responses are partially a function of the ambiguities in Mr. Sheliga's requests, we nevertheless urge the Fiscal Court to review KRS 61.880(1) to insure that it strictly complies with the statutory requirements contained therein in responding to Mr. Sheliga's, and all other, open records requests.
This office is not empowered to assess the "candor" of a public official in responding to an open records request. As we have often observed, "[W]e assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request and from the official custodian in providing the records that satisfy the request." 93-ORD-15; 96-ORD-233; 00-ORD-4; 06-ORD-206; 08-ORD-189. Nothing in the record on appeal appears to raise the issue of the Rockcastle County Fiscal Court's good faith in responding to Mr. Sheliga's requests. Consistent with the guidance set forth above, we find that its duties under the Open Records Act with respect to his May 14, 2010, request will be fully discharged when it discloses any existing records that support its June 4, 2010, narrative responses to Mr. Sheliga's letter of appeal and/or affirmatively advises him that no responsive records exist. Mr. Sheliga may initiate a separate appeal concerning his March 26 and April 16 requests, and upon submission of all statutorily required documentation, this office will proceed to any adjudication of that matter. KRS 61.880(2)(c); 40 KAR 1:020 Section 1.
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.
Michael SheligaBuzz CarloftisWilliam D. Reynolds
Footnotes
Footnotes
1 40 KAR 1:030 Section 1 provides:
The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial.
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