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 Leslie County Judge/Executive, the Leslie County Surveyor, the Leslie County Treasurer, the Leslie County Finance Officer, and the Leslie County Road Supervisor violated KRS 61.880(1) by failing to respond to D. Duane Cook's November 6, 2010, request for "all records concerning the 'Lower McIntosh Access Road.'" 1 Further, we find that these officials subverted the intent of the Open Records Act by failing to conduct an adequate search for records responsive to Mr. Cook's request. It is the decision of this office that the analysis found in 10-ORD-051, a copy of which is attached hereto and incorporated by reference, is dispositive of the issues on appeal.
In his letter of appeal, Mr. Cook complained that he received no response from any of the named officials to whom he mailed separate requests for the same records. He attached a copy of a newspaper article in which Leslie County Judge/Executive Jimmy Sizemore extends his thanks to the "State Highway Department in Manchester, all the employees of the Leslie County State Highway Department, and all the employees of the Leslie County Road Department for working together and getting this project done." Upon receipt of notification of Mr. Cook's appeal, Judge Sizemore notified Mr. Cook that "the Leslie County Fiscal Court has no information concerning this matter" and referred him "to Perry County Coal Corporation with any further correspondence. "
Given the statement attributed to Judge Sizemore in the newspaper, and the absence of any explanation for the nonexistence of responsive records or the nature of the search conducted, on January 13, 2011, this office mailed a written request for additional information to Judge Sizemore, pursuant to KRS 61.880(2)(c), to substantiate the county's position. We asked that the county describe "what measures were undertaken to locate records responsive to Mr. Cook's request, what role Leslie County played in the Lower McIntosh Access Road project generally, and what role the Leslie County Road Department played in the project specifically." Additionally, we asked that Leslie County explain why it referred Mr. Cook to the Perry County Coal Corporation and what role the corporation played in the project. On January 20, 2011, Judge Sizemore responded. He acknowledged receipt of our correspondence, indicating that "the Leslie County Fiscal Court does not have these records being requested in its possession," but did not answer our questions or otherwise substantiate the county's position. Here, as in 10-ORD-051, we cannot affirm Leslie County's denial of Mr. Cook's request because the record on appeal contains insufficient proof of an adequate search.
We refer the parties to pages 5 through 7 of 10-ORD-051, analyzing the standard by which an agency's search for public records is assessed and determining that the agency's bare allegation that the search for responsive records was "diligent" was not sufficient to discharge its statutory obligation. In the appeal before us, we do not even have unsubstantiated assurances that the Leslie County officials to whom Mr. Cook directed his request conducted a "diligent" search. Like the officials in 10-ORD-051, the Leslie County officials are obligated to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 10-ORD-051, p. 5 citing 95-ORD-96, p. 7. If that good faith search yields no results, the Leslie County officials must notify Mr. Cook in writing, describing their search methods. If the search produces responsive records, the Leslie County officials must produce them for his inspection. Until Leslie County has conducted an adequate search and produced responsive records or, finding none, described the search methods employed to Mr. Cook, its duties under the Open Records Act will not be fully discharged.
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. Cook indicated that theimproved road:
lies on the Hyden East USGC Quad. The improved road is shown on the Kentucky Transportation Cabinet's 'Rural and Secondary Roads' map and is listed as 'Lower McIntosh Access Road.' This road intersects both the approximate 0.41 mile marker of Lower McIntosh Road (CR-1040) and the approximate 49.3 mile marker on Hal Rogers Parkway.