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 City of Sandy Hook relative to Stephen C. Keller's identical March 18, 2011, and April 4, 2011, requests for "copies of any documents, surveys, plats, diagrams, deeds, photographs or other materials identifying any water and sewer easements on the real property owned by Cindy Redwine (a/k/a Cindy Griffith)" violates the Open Records Act. Having received no response to his initial request, Mr. Keller sent his April request via certified mail and it was accepted for delivery by "Edna W. Pennington" at Sandy Hook City Hall on April 6, 2011. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both the Mayor and the City Attorney on June 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 Wednesday, June 29, 2011," this office has not received a written response of any kind nor was either Notification returned as being undeliverable. After the June 29 deadline had passed, this office contacted the City Attorney to confirm receipt of the Notification and to inquire as to whether he planned to respond on the City's behalf, ultimately advising that any response would need to be received as soon as possible; however, as of this date, the Attorney General has not been advised that any kind of response was issued on behalf of the City relative to Mr. Keller's request. Such inaction unquestionably constitutes a violation of KRS 61.880(1).
As a public agency, the City 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 that "[t]he 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 City did here, constitutes a violation of the Act.
The City had three opportunities to discharge its duty under KRS 61.880(1); first, upon receipt of Mr. Keller's March 18 request; second, upon receipt of his April 4 request; and, third, upon receiving the notification of his appeal from this office. It is undisputed that the City has not issued a written response to Mr. Keller's request, and this constitutes a clear violation of KRS 61.880(1). Public agencies such as the City are not permitted to elect a course of inaction. See 05-ORD-190; 11-ORD-038. 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 City did not respond to Mr. Keller's request, the City has 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 City must provide Mr. Keller with copies of any existing records in its custody which are responsive to his request unless the City can and does belatedly 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 City's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 2 If the City "does not have custody or control" of any records identified in Mr. Keller's request, the City "shall notify [Mr. Keller] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the City 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.
Distributed to:
Stephen C. KellerJames AdkinsJace Nathanson
Footnotes
Footnotes
1 A public agency such as the City 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. Keller's request, the City must promptly indicate as much to Mr. Keller 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 City must ascertain whether any existing records are responsive to Mr. Keller's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.