Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
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 Ohio County Fiscal Court violated KRS 61.880(1) by failing to respond to Robert D. Cron's August 30, 2012, request for a copy of "the appraisal of the land and property bought in partnership with Butler County, known as the Rochester Ferry." The fiscal court subverted the intent of the Act, short of denial of inspection, by belatedly notifying Mr. Cron that the Butler County Fiscal Court maintains the requested records without first having a reasonable basis that Butler County is the custodian of that record.
Upon receipt of this office's notification of Mr. Cron's appeal, the Ohio County Fiscal Court notified this office and Mr. Cron that "all records and documentation Mr. Robert Cron has requested can be found at the Butler County Judge/Executive's Office," providing Mr. Cron with a copy of the single responsive record in its custody, namely, a December 2010 interlocal agreement. Pursuant to KRS 61.880(2)(c), this office asked the fiscal court whether any official or employee "confirmed that the Butler County Fiscal Court has custody of the appraisal of the Rochester Ferry conducted in advance of the joint purchase which Mr. Cron specifically requested." The fiscal court responded that the statement was based on an assumption arising from the fact that it did not have custody of the appraisal.
The Ohio Fiscal Court offers no explanation for failing to respond in writing, and within three business days, to Mr. Cron's open records request. This failure constituted a violation of KRS 61.880(1) which 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). The Fiscal Court also subverted the intent of the Act by misdirection when it belatedly notified Mr. Cron that the requested appraisal could be obtained from the Butler County Fiscal Court without first confirming that Butler County is custodian of the appraisal. Although KRS 61.872(4) 1 obligates a public agency to furnish an open records requester with the name and location of the official custodian of the record sought when it receives a request for a record that is not in the public agency's custody or control, 2 the Open Records Act assumes that the information furnished has a verified reasonable basis. The net effect of the agency's failure to have a reasonable basis for the information before furnishing it to the requester was, in this case, misdirection of the requester and consequent subversion of the intent of the Act. KRS 61.880(4). 3
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:
Robert D. CronDavid JohnstonGregory Hill
Footnotes
Footnotes
1 KRS 61.872(4) provides, "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."
2 In Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011), the Kentucky Court of Appeals declared that "when it is determined that an agency's records do not exist, the person requesting those records 'is entitled to a written explanation for their nonexistence.'" The Ohio County Fiscal Court may wish to bear this in mind in responding to future requests.
3 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.