Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Lancaster City Council violated both the procedural and the substantive requirements of the Open Records Act in denying David Wilson's April 23, 2013, request for access to "documents related to the employment of Damon Talley and all invoices or billing records related to his employment from Jan. 1, 2013, to the current date."
In an undated letter, Mayor Brenda Powers denied Mr. Wilson's "request for documents at this time," referring him to an attached letter from Mr. Talley "[f]or further explanation." Mr. Talley's letter made no reference to Mr. Wilson's open records request, focusing exclusively on Mr. Wilson's April 8, 2013, open meetings complaint. In correspondence copied to this office after Mr. Wilson initiated his appeal, Mr. Talley notified Mr. Wilson:
The only record or document related to my employment as Special Counsel to the City of Lancaster is the Minutes of the January 21, 2013 City Council Meeting. Mayor Powers and I discussed this matter this morning. She plans to either hand deliver or mail the Minutes to you today. I have not yet submitted an invoice to the City for my work as Special Counsel because my work is not yet complete.
In closing, Mr. Talley expressed his "regrets that [Mr. Wilson was] not timely provided this information." In a telephone conversation with the undersigned, conducted on May 31, 2013, Mr. Wilson advised that, as of that date, he had not received the referenced meeting minutes from the mayor or anyone else. The city's inaction constituted a violation of the Open Records Act.
Because it was undated, it is unclear whether the city's response to Mr. Wilson's request was issued within three business days as required by KRS 61.880(1). It is, however, clear that the response was otherwise deficient because it constituted a denial of Mr. Wilson's request without "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" required by KRS 61.880(1). That statute 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.
As noted, in her undated response to Mr. Wilson's April 23 request, Mayor Powers referenced an April 12 letter prepared by Mr. Talley responding to Mr. Wilson's April 8 open meeting complaint. That response makes no reference, and chronologically could make no reference, to Mr. Wilson's open records request since it was issued several days before the request was filed. Her response was, in fact, wholly deficient and therefore violative of the Open Records Act.
Upon receipt of notification of Mr. Wilson's open records appeal, Mr. Talley notified Mr. Wilson that the only record related to his employment as special counsel was the minutes of the January 21 council meeting. Mr. Talley indicated that, as of the date of his letter, May 13, 2013, he had submitted no invoices to the city for his work. Having discussed Mr. Wilson's request with Mayor Powers, Mr. Talley stated that Mayor Powers intended "to either hand deliver or mail the minutes to" Mr. Wilson on May 13. Mr. Wilson acknowledged receipt of a copy of Mr. Talley's letter but asserted that the mayor had not, as of the date of his conversation with the undersigned, May 31, 2013, delivered the minutes to him. The failure to deliver copies of the referenced minutes to Mr. Wilson constituted a clear violation of the substantive requirement of the Open Records Act. The city must immediately provide Mr. Wilson with a copy of the minutes he requested on April 23, 2013, and for which he has waited in excess of one full month.
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:
David WilsonBrenda PowersDamon R. Talley