Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Somerset violated the Open Records Act in the disposition of William Cruey's March 26, 2012, request for:
records, logs, tax receipts, ledgers, or any accountability of the distribution and procedures of FREE Somersplash Water Park Season and Day passes given out by any city entity, employee, elected official or Somersplash Water Park for Somersplash Seasons of 2010 and 2011. [Sic.]
The record on appeal contains no proof of agency violation of the Act.
On March 28, 2012, Somerset City Attorney Carrie D. Wiese and Somerset City Clerk David Godsey issued an "initial response" to Mr. Cruey's request containing copies of "documents found in the water park files and office." They advised him that:
Not all water park passes, whether season or day-passes, are logged or noted by the water park or other departments within the city due to their cost free status -- the city neither receives nor expends any funds by providing passes to the public . . . . The documents . . . therefore do not reflect the actual amount of passes that may have been provided by the city during the years requested.
Upon receipt of the city's response, Mr. Cruey questioned the use of the term "initial," and on April 2, 2012, submitted an identical request for records. He asked that the city issue "a 'final response' in writing on this matter." The city did not respond to this request. Mr. Cruey thereafter initiated this appeal, focusing on the potential for abuse of the public's right of access which the use of the term "initial" might permit.
In subsequent correspondence directed to this office, the city confirmed that copies of all existing responsive records were mailed to Mr. Cruey on March 28. City Attorney Wiese indicated that, consistent with 03-ORD-093, the city's March 28 response included an explanation of the paucity of records produced. She explained why the city decided not to treat his April 2 request as a new request:
[The April 2 request] contained the exact same request for records which was stated in his March 26, 2012, request, to which the city had already responded and provided the records requested in full. My office contacted Mr. Cruey on April 3, 2012, to explain that the word 'initial' had been used in the letter in case the city was able to supplement the records already sent to him. [We] explained to him again that all records that existed had been provided to him and that no records had been . . . withheld . . . . He was also told that since the date our response had been mailed no other records had been located and that he should consider the city's March 28 response as final.
In sum, Ms. Wiese remarked, "Mr. Cruey's issue was with semantics, not the substance of the response or records." Having reviewed the record on appeal, we agree.
Pursuant to KRS 61.880(1), an agency response to an open records request "shall be issued by the official custodian or under his authority, and it shall constitute final agency action." (Emphasis added.) This statute is premised on the notion that before issuing its response the agency has engaged in "a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested," 1 and is prepared to produce all existing nonexempt records that are responsive to the request. Although Mr. Cruey's suspicions were raised by the city's use of the term "initial" response, the city explained that it intended nothing more than to leave the door open to further disclosure if additional records were located. Assuming it made an effort to conduct a good faith search using appropriate search materials, and thereafter disclosed all responsive records located, we assign no error to the city. If evidence existed that the city employed the term to evade full disclosure, we would, of course, reach the opposite conclusion. However, nothing appears in the record on appeal to raise the issue of the city's good faith. Its response, although designated "initial," was for all intents and purposes final within the meaning of KRS 61.880(1), and no further KRS 61.880(1) response was required. 2
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:
William John Cruey Sr.David GodseyCarrie D. Wiese
Footnotes
Footnotes
1 95-ORD-96; 11-ORD-127.
2 We do not mean to suggest that a public agency should ignore any records request. The city did not ignore Mr. Cruey's April 2 request, which was identical to his March 28 request except for his demand for a "final response," but elected to respond by telephone.