Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the inaction of the Monroe County Sheriff's Department in relation to Chester L. Taylor, Jr.'s February 5, 2011, request on behalf of Michael Wayne Dunagan for eight records, including the Uniform Citation and the arrest warrant served issued to Mr. Dunagan on April 2, 2009, violated the Open Records Act. Mr. Taylor directed his request to the "Open Records Disclosure Officer" at the Department via certified mail on February 5, 2011, and it was accepted on February 7, 2011, by a "Gerene Brown." Having received no response of any kind, Mr. Taylor initiated this appeal by letter dated February 19, 2011. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both the Monroe County Sheriff and the Monroe County Attorney on February 23, 2011, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Tuesday, March 1, 2011," this office has not received a written response nor was either Notification returned as being undeliverable. The undersigned counsel spoke with a representative of the Department on two separate occasions by telephone and was ultimately advised that all of the paperwork had been forwarded to the County Attorney for a response; however, as of this date, the Attorney General has not been advised that any type of response issued on behalf of the Department relative to Mr. Taylor's request. This inaction constitutes a clear violation of KRS 61.880(1).
As a public agency, the Department must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) In construing the mandatory language of this provision, the Kentucky Court of Appeals observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996) (emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id.; 01-ORD-183, pp. 2-3. It logically follows that failing to respond, as the Department did here, constitutes a violation of the Act.
The Department had two opportunities to discharge its duty under KRS 61.880(1); first, upon receipt of Mr. Taylor's February 5 request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the Department has not issued a written response to Mr. Taylor's request, and this constitutes a clear violation of KRS 61.880(1). Public agencies such as the Department are not permitted to elect a course of inaction. The analysis contained in 05-ORD-190, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5; 09-ORD-186.
Because the Department did not respond to Mr. Taylor's request, the Department necessarily failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." 1 Accordingly, the Department must provide Mr. Taylor with copies of any existing records in its custody which are responsive to his request unless the Department can satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the Department's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 2 If the Department "does not have custody or control" of any records identified in Mr. Taylor's request, the Department "shall notify [Mr. Taylor] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the Department performs these functions, it stands in violation of the Open Records Act. See 09-ORD-186; 10-ORD-093.
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 party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 A public agency such as the Department must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232.
2 If no records exist which are responsive to Mr. Taylor's request, the Department must promptly indicate as much to Mr. Taylor in writing. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Department must ascertain whether any existing records are responsive to Mr. Taylor's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate-nothing more, nothing less.