Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the inaction of the Jackson County Sheriff's Department in relation to Lowell T. Green's February 12, 2013, request for "access to and copies of [t]he investigation report on the attempted hit and run of Lowell T. Green which took place on May 17, 2012," violated the Open Records Act. Mr. Green advised that the "911 dispatcher was given the license number of the vehicle, a description of the vehicle and the driver, and the location of the vehicle after the attempted hit and run took place. The Sheriffs [sic] office was also provided with name and phone number of witness." Jackson County Deputy Sheriff Goforth was in charge of the investigation according to Mr. Green. He asked for "all documents pertaining to the investigation." Having received no response of any kind to his request, Mr. Green initiated this appeal by undated letter which this office received on March 27, 2013. Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Jackson County Sheriff Denny Peyman and Jackson County Attorney George T. Hays on March 27, 2013, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Tuesday, April 2, 2013," this office has not received a written response from the agency or its counsel nor has anyone contacted us to request additional time in which to submit a response. Neither of the Notifications was returned as being undeliverable. This inaction by the Sheriff's Department constitutes a clear violation of KRS 61.880(1).
As a public agency, the Department must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. 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.
(Emphasis added.) In construing the mandatory language of this provision, the Kentucky Court of Appeals observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996) (emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. ; 01-ORD-183, pp. 2-3. It logically follows that failing to respond, as the Department did here, constitutes a violation of the Act.
The Department had two opportunities to discharge its duty under KRS 61.880(1); first, upon receipt of Mr. Green's February 12, 2013, request, and second, upon receiving the Notification of his appeal from this office. It is undisputed that the Department has not issued a written response to Mr. Green's request, and this constitutes a clear violation of KRS 61.880(1). Public agencies such as the Department are not permitted to elect a course of inaction. As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5; 05-ORD-190; 09-ORD-186; 12-ORD-085.
Because the Department did not respond to Mr. Green's request, it necessarily failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." 1 Accordingly, the Department must provide Mr. Green with copies of any existing records in its custody which are responsive to his request unless the Department can satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b) , the Department's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 2 If the Department "does not have custody or control" of any records identified in Mr. Green's request, the Department "shall notify [Mr. Green] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Compliance with provisions of the Open Records Act "is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5; see 11-ORD-042 (duty to respond to requests and to "afford the requester timely access to the records identified in this request, is as much of a public servant's duty as any other essential function"). Until the Department performs these functions, it stands in violation of the Open Records Act. See 09-ORD-186; 10-ORD-093.
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 party in that action or in any subsequent proceeding.
Distributed to:
Lowell T. GreenDenny PeymanGeorge T. Hays
Footnotes
Footnotes
1 A public agency such as the Department must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232.
2 If no records exist which are responsive to Mr. Green's request, the Department must promptly indicate as much to Mr. Green in writing. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Department must ascertain whether any existing records are responsive to Mr. Green's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate-nothing more, nothing less.