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 James Peden (District 23) 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 Peden, 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), 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." By letter dated October 13, 2012, Ms. Thurman attempted to refute Ms. Franklin-Gray's timeline, noting, for example, that she received Ms. Rojas' October 12, 2012, letter one day later on October 13, 2012.
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.
This office has consistently acknowledged the inability to conclusively resolve factual disputes, and specifically ones concerning actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-122. Most recently, the Attorney General reaffirmed this line of decisions in resolving a separate appeal involving an identical request by Ms. Thurman to a different Metro Councilmember. Inasmuch as the facts/arguments presented here mirror those presented in 12-ORD-204 (In re: Pat Thurman/Louisville Metro Councilmember Cheri Bryant Hamilton, issued November 5, 2012), the analysis contained therein is controlling. 1 A copy of 12-ORD-204 is attached hereto and incorporated by reference. "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 Councilmember [Peden] 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 ThurmanJames PedenBrianda A. Rojas
Footnotes
Footnotes
1 The only factual distinction is found in the agency's otherwise identical September 27, 2012, response, the merits of which are not in dispute, and relates to Item 1. Ms. Franklin-Gray advised that the "Council Office does not have any cell phones" for which payment is reimbursed with taxpayer funds. The record on appeal is devoid of evidence to refute this assertion.