11-ORD-218

11-ORD-218

December 27, 2011

In re:        The Courier-Journal/Lake Dreamland Fire Department

Summary:        Lake Dreamland Fire Department violated the procedural and substantive requirements of the Open Records Act in denying request for roster of firefighters and purchase orders.

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 Lake Dreamland Fire Department violated KRS 61.880(1) by failing to properly respond to Courier-Journal staff writer Jessie Halliday’s September 29, 2011, written requests for the “roster of firefighters, including career staff and volunteers,” and “purchase orders, or other documentation [that includes the date of purchase, cost, and quantity purchased] for the last two purchases of the following items: helmets, hoses, and uniforms.”  The Department’s handling of The Courier’s requests was both procedurally and substantively deficient.

        Ms. Halliday first contacted Chief John Wilkinson, Jr., by email on September 29, asking that he respond to her inquiry concerning “the number of people you have that also work in other departments.”  Chief Wilkinson responded by email within minutes, advising her that the Lake Dreamland Fire Department has “26 members that are on other departments,” but asserted that their names and the other departments on which they serve “is irrelevant.”  Ms. Halliday then asked that he treat her emailed reply as “an open records request for . . . the roster of both career staff and volunteers,” indicating that she would follow-up with “a more official letter” if he preferred. Chief Wilkinson tersely responded that the requested records “will not be released,” prompting Ms. Halliday to submit two written open records requests, by U.S. Mail, one for the staff roster and the other for purchase orders. She received no response to these requests, both dated September 29, and on November 18 The Courier-Journal initiated this open records appeal.  

        KRS 61.880(1) establishes procedural guidelines for public agency response to 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.

In construing this provision, the Kentucky Court of Appeals has 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). Amplifying on this view, the Attorney General has opined that 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.”  93-ORD-125, p. 3. A “limited and perfunctory response” does not “even remotely compl[y] with the requirements of the Act – much less . . . amount[ ] to substantial compliance.”  Id.  And “discharge of these duties . . . is as much a legal obligation of a public agency as the provision of services to the public.”  01-ORD-21, p. 2.

        The Lake Dreamland Fire Department violated KRS 61.880(1) by responding in a perfunctory fashion to the requests Ms. Halliday submitted by email¹ and by failing to respond in any fashion to the written requests she submitted by U.S. Mail. Clearly, the Chief’s statements that the records she requested were “irrelevant” and would “not be released” did not satisfy the requirements for agency response to an open records request. The response omitted any citation to the exception,² or other legal authority,³ justifying its denial of Ms. Halliday’s request and any explanation, brief or otherwise, of how the exception, or legal authority, applied to the records withheld. The Department’s failure to respond in any fashion to her subsequent requests was particularly egregious. The Department had ample opportunity to discharge its statutory duties but elected to ignore these duties until The Courier initiated this appeal, disclosing the records to Ms. Halliday sixty days, rather than the legally mandated three business days, after she requested them. Since the records to which Ms. Halliday requested access did not qualify under any of the exceptions referenced above, the Department’s disposition of her request was also substantively deficient. We urge the Lake Dreamland Fire Department to review the Open Records Act, and in particular KRS 61.880(1), to insure that its future responses satisfy the express requirements of the law.

        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.

                                                Jack Conway

                                                Attorney General

                                                Amye L. Bensenhaver

                                                Assistant Attorney General

#416

Distributed to:

Jon L. Fleischaker

Col. John Wilkinson, Jr.

Dennis M. Clare, Sr.