Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Spencer County Planning and Zoning Commission, through Spencer County Judge Executive Bill Karrer, violated the Open Records Act in denying Lawrence Trageser's undated request for access to "any record or document reflecting the counties [sic] petition for a building permit relating to the tower construction at Fairgrounds Rd." The conflicting evidentiary record in this appeal precludes conclusive resolution of this question.
Responding to Mr. Trageser's request, Judge Karrer maintained that "[a] permit for the referenced tower is not a legal requirement, therefore, no permit exists." He later asserted that documentation 1 submitted by Mr. Trageser to support Mr. Trageser's claim that a permit application exists or existed was fraudulent. Mr. Trageser replied that at least three county officials, including Commission Administrator Julie Sweazy, confirmed the existence of responsive documentation. He stated that the permit application attached to his letter of appeal "was obtained by a county magistrate and provided to [him]," but that "the primary copy was confiscated without [Administrator] Sweazy's permission or knowledge and shredded by Karrer."
Under these circumstances, we can do little more than admonish the party advancing the spurious claim, yet we have no basis to determine whom between the parties is worthy of admonishment. If, as Mr. Trageser alleges, responsive records existed and were destroyed or are being concealed by Judge Karrer, this appeal presents serious issues of statutory noncompliance that may be appropriate for review by prosecutorial authorities pursuant to KRS 61.991(2) 2 and that are certainly appropriate for review by the Public Records Division of the Kentucky Department for Libraries and Archives pursuant to KRS 61.8715. 3 If, on the other hand, Mr. Trageser falsified documents to pursue manufactured claims, this appeal presents equally serious issues of abuse of an administrative process justifying the Judge Executive's denial of Mr. Trageser's request pursuant to KRS 61.872(6). 4
It is understood that relations between some Spencer County officials and Mr. Trageser are strained. Clearly, their fundamental dispute cannot be settled in an open records appeal. Given the gaping factual disparity between Mr. Trageser's letter of appeal and Judge Karrer's response, we cannot resolve the issue presented in favor or against either party 5.
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:
Lawrence TrageserBill KarrerRuth HollanBarbara Teague
Footnotes
Footnotes
1 This documentation includes the unsigned "computer version" of the application for a building permit for a "radio tower on a 100+ acre tract of land," dated November 14, 2012, (application number 111412A), a signed copy of a similar application to build a "utility building 96 sq. ft. on a 100+ acre tract of land" dated November 15, 2012, (application number 111512A), and a December 28, 2012, letter from Administrator Sweazy to the fiscal court and Judge Karrer, on agency letterhead, requesting the return of information submitted to her office on November 14, 2012, "pertaining to a radio tower and a utility building to be located at 843 Fairgrounds Road" that was "retrieved" by Judge Karrer.
2 KRS 61.991(2)(a) provides:
Any official of a public agency who willfully conceals or destroys any record with the intent to violate KRS 61.870 to 61.884 shall be guilty of a Class A misdemeanor for each separate violation.
3 KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records . . .; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.
4 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
5 We assign no error to Ms. Sweazy individually, or the Commission as a public agency, for their roles in this matter since Judge Karrer took responsibility for responding to Mr. Trageser's request.