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 having carefully reviewed the issue presented, we yield jurisdiction of that issue to the courts. Because Mr. Brumley seeks a determination that Nelson County Judge/Executive Dean Watts willfully concealed records responsive to his October 4, 2010, request, we are statutorily foreclosed from rendering a decision.
On October 4, Mr. Brumley requested copies of records relating to the unpermitted construction of bridges in Nelson County. On October 5, Judge Watts provided Mr. Brumley with 45 pages of responsive records. On October 12, Judge Watts received an open records request for records relating to the same subject from a different requester. Judge Watts subsequently provided the latter requester with a copy of a record referred to as a "Supplemental Environmental Project" that was responsive to Mr. Brumley's request but not provided to him. On this basis, Mr. Brumley asserted that Judge Watts "willfully withheld" the SEP from him. On appeal, Mr. Brumley speculates on the existence of additional responsive records Judge Watts "deceptively" 1 withheld "to cover up his wrongdoings." Judge Watts denies these allegations in a response prepared by Nelson County Attorney John Kelley.
Evidence of willful nondisclosure of public records, regardless of whether that nondisclosure is characterized as withholding or concealment, cannot properly be considered by the Attorney General in an appeal brought pursuant to KRS 61.880(2)(a). That statute provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
In construing this provision, the Attorney General has observed:
Our role in adjudicating the open records dispute between the parties is a limited one. Pursuant to KRS 61.880(2)(a), the Attorney General is charged with the duty to review [the] request and the response and issue a written decision stating whether the agency violated the provisions of KRS 61.870 to 61.884.
98-ORD-23, p. 2; 00-ORD-150. We have neither the ability nor the authority to assess the state of mind of the agency custodian in withholding a record. Our review is, in general, restricted to determining if a legitimate statutory basis exists for withholding a record. KRS 61.991(2)(a) confirms that the authority to assess intent, in general, resides in the courts by establishing penalties for "[a]ny official of a public agency who willfully conceals or destroys any record with the intent to violate KRS 61.870 to 61.884. . . ."
From the earliest days of its enactment, this office has recognized that allegations of willful concealment of public records must be prosecuted in the courts. See, e.g., OAG 76-4. For this reason, the Attorney General has consistently advised complainants possessing evidence of willful concealment of records with an intent to violate the Act to present that evidence to the appropriate prosecutorial authorities. On close inspection of the allegations of Mr. Brumley's appeal, we find no claim of misplaced reliance on a statutory exception to justify nondisclosure of a public record or any other "violation" of the Act. Instead, Mr. Brumley repeatedly alleges willful concealment and an intent to deceive. This is a matter for the court of law. In light of our limited jurisdiction, this office cannot make this determination.
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 Mr. Brumley maintains that Judge Watts "tri[ed] to deceive [him] by not furnishing the requested public records. "