Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Councilwoman Dr. Barbara Shanklin 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 October 29, 2012, request for certain "written/printed verification[s]" concerning a refund of $ 615.58 to a contract holder in connection with a cake decorating class for ex-offenders. By a letter dated November 8, 2012, and received in this office on November 14, 2012, Ms. Thurman initiated this appeal, stating that she had sent the request but received no response.
On December 3, 2012, Terri A. Geraghty, Jefferson County Attorney's Office, responded on behalf of Dr. Shanklin, advising that neither Dr. Shanklin nor Metro Council Open Records Coordinator Lisa Franklin Gray had received Ms. Thurman's request, apart from the copy attached by the Attorney General to the notification of this appeal. Ms. Geraghty further advised that neither Dr. Shanklin nor the Louisville Metro Council possessed any records related to financial transactions for the cake decorating class in question; that Dee Allen, the Metro Government Open Records Coordinator, 611 West Jefferson Street, Louisville, Kentucky 40202, would be the proper custodian for such records; and that Ms. Thurman had been informed of these facts in writing by Lisa Franklin Gray on both September 27, 2012, and October 12, 2012, in connection with other requests she had made. Copies of those letters were provided to this office.
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 that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. ( See 12-ORD-204 and authorities cited therein.) In the absence of proof that Dr. Shanklin's office received the request, this office is unable to determine that any violation of KRS 61.880(1) occurred. Furthermore, the repeated advice of the Jefferson County Attorney's office as to the proper custodian of records would have fulfilled Dr. Shanklin's duty under KRS 61.872(4) ("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" ). We therefore find no violation of the Open Records Act.
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 ThurmanCouncilwoman Barbara ShanklinAubrey Williams, Esq.Terri A. Geraghty, Esq.