Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Greenup County Jailer violated the Open Records Act by failing to respond to Wayne C. Murphy's April 12, 2011, request to "inspect any and all documents that verify any and all dates of arrests, jail incarcerations, [and] charges concerning . . . William D. Mollett." Mr. Murphy received no response to his request prompting him to initiate this appeal.
On April 22, 2011, this office issued written notification of Mr. Murphy's appeal to the Greenup County Jailer and the Greenup County Attorney. That notice advised the Jailer that he could "respond to this appeal" on or before April 28, 2011. We received no response from the Jailer. Thus, the Jailer was afforded two opportunities to discharge his statutory duty and elected not to do so.
KRS 61.880(1) establishes specific legal requirements for public agencies that receive an open records request. That statute 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.
The Greenup County Jailer is a "public agency" within the meaning of KRS 61.870(1)(a), defining that term as "[e]very state or local government officer." His failure to issue a written response to Mr. Murphy's request within three business days of receipt of that request constituted a violation of the Open Records Act. Any statutory exceptions that he might have invoked to deny Mr. Murphy's request were effectively waived by his inaction. Accord OAG 79-275 cited in 03-ORD-042, p. 3 (holding that "An exemption not invoked by an agency in its response to an open records request is an exemption waived by the agency when its denial is appealed to the Attorney General").
Nevertheless, Mr. Murphy is currently confined at Eastern Kentucky Correctional Complex, and his ability to conduct on-site inspection of the records, as requested, is impeded. Unless his inmate account contains sufficient funds to defray the costs of reproduction and postage, which the Jailer may require him to prepay in advance pursuant to KRS 61.872(3)(b) and KRS 61.874(1), the Jailer is not obligated to mail him copies. Accord 11-ORD-075.
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.
Distributed to:
Wayne C. Murphy, # 207062Mike WorthingtonMichael C. Watson