Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in this appeal is whether Louisville Metro Councilmember Cheri Bryant Hamilton (District 5) violated the Kentucky Open Records Act, specifically KRS 61.880(1), in failing to issue a timely written response upon receipt of Pat Thurman's September 22, 2012, request for a "[p]rintout of cell phone record bills paid with taxpayer money," "[a]ll monies spent from your NDF Fund," "[a]ll invoices and bills submitted to you for payment from your NDF Fund," [a]ll of your e-mails sent and received via Louisville Metro computers, " and "[a]ll of your written correspondence -- letters, notes, memos" for the period of July 1, 2008, through August 31, 2012. Ms. Thurman asked that all of the information/records be provided on a CD. By letter dated October 1, 2012, Ms. Thurman initiated this appeal, noting that she mailed the request "inside the Lyndon Ln. post office" but had received no response as of that date. Upon receiving notification of Ms. Thurman's appeal from this office, Brianda A. Rojas, Jefferson County Attorney's Office, responded on behalf of Councilmember Bryant, advising that Lisa Franklin-Gray, Metro Council Open Records Coordinator, had informed her that Ms. Thurman's request was actually received at the Metro Council Office on September 25, 2012, and she issued a written response on September 27, 2012 (within three business days), 1 a copy of which Ms. Rojas attached to her October 12, 2012, appeal response. Ms. Rojas also included an affidavit of Ms. Franklin-Gray, dated October 12, 2012, attesting to the timeliness of her written response. Ms. Franklin-Gray specifically advised that Ms. Thurman's request was received on September 25, 2012, "in the offices of Metro Council," and that on September 27, 2012, she "mailed by regular first-class United States Mail, postage pre-paid, a written response to Ms. Thurman at the address that she provided in her request."
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.
By letter dated October 13, 2012, Ms. Thurman noted that the "post office stamp on my envelope" from Ms. Gray is dated October 2, 2012, and it was received on October 3, 2012; also, the zip code from which it was mailed is 40218, which is near the Buechel Bypass Rd. area, Ms. Thurman observed, whereas the zip code for City Hall is 40202. Ms. Thurman further advised that she received Ms. Rojas' October 12, 2012, letter one day later on October 13, 2012. She offered to mail the actual envelopes upon request in order to substantiate her position that a timely response was not issued; however, this office made no such request as the envelopes, while lending credence to her position, would not constitute irrefutable proof to contradict Ms. Franklin-Gray's position. This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-122.
In addressing disagreements of this nature, the Attorney General has frequently noted:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
OAG 89-81, p. 3; 03-ORD-061; 04-ORD-036; 05-ORD-042; 09-ORD-023. As in the cited decisions, to name but a few, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Ms. Thurman's request for this office to conclusively resolve the related factual issue. This office has no reason to question Ms. Thurman's veracity and her points are well-taken; however, the record is equally lacking in terms of any basis to question Ms. Franklin-Gray's veracity or conclusively refute her affidavit. In the absence of any irrefutable proof that the agency received the request prior to September 25, 2012, this office is unable to determine that Councilwoman Bryant violated the Act from a procedural standpoint in failing to issue a written response within three business days of receipt per KRS 61.880(1), given that a response was issued on September 27, 2012.
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:
Pat ThurmanCheri Bryant HamiltonBrianda A. Rojas
Footnotes
Footnotes