Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the office of the Knox County Judge/Executive violated the Open Records Act in its disposition of Dennis Gibson's requests for copies of certain checks issued by the county. For the reasons that follow, we find that the office procedurally violated the Act but find no substantive violation of the Act.
The procedural history of this appeal is somewhat involved. On April 29, 2014, Mr. Gibson made his original request for "a copy of the amount of checks paid to 'McVey Land Development' or 'McVey Trucking' each month for the last 5 years." The County Judge/Executive responded on May 2, 2014:
We should have the information for your open records request in the next 7-10 (seven to ten) business days. Therefore that should be during the week of May 12, 2014. We will mail you the results.
KRS 61.872(5) provides that "[i]f the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " (Emphasis added.) The Judge/Executive's May 2 letter gave no explanation of the cause for further delay, and thus violated KRS 61.872(5).
On May 14, 2014, the Judge/Executive's office sent Mr. Gibson a chart showing the number of checks that had been issued to McVey Land Development during each of the months requested, a total of 164 checks. The accompanying letter indicated: "We have no McVey Trucking checks."
Evidently this letter represented a misunderstanding of Mr. Gibson's request for "the amount of checks paid," because on May 19, 2014, Mr. Gibson made a second request as follows:
I would like a copy or the amount of each check that the county treasure [ sic ] of Knox County paid (in dollars & cents) to McVey Land Development. From 2009 thru 2014 as of this date 5-19-2014. I believe the check total to be more than 164. It should be in dollars and cents. As these checks were authorized to be paid by the fiscal court and the Knox County Judge. As I request this, thru the Freedom of Information Act. To rec[ei]ve within (3) three business days.
(Emphasis added.) It is undisputed that no written response was made to this second request. According to Mr. Gibson, he was told that his request was improper because it referred to the "Freedom of Information Act" instead of the Open Records Act. This mistake in nomenclature does not relieve an agency of its duty to respond to a request for public records. "[F]ailure to issue a timely response to an open records request [is] not excused by the requester's failure to identify the request as a request made under the Open Records Act. " 12-ORD-114. Therefore, the Judge/Executive's office committed a second procedural violation of the Act by not responding in writing.
According to the agency, "[a] verbal conversation was had, and Mr. Gibson was told that the Judge Executive's Office would provide him with an authorization to get copies of any checks he wanted from the bank used by the county," but "he would have to pay the costs associated with getting the copies requested." The final disposition of this second request has, through subsequent events, been subsumed under Mr. Gibson's third request.
Mr. Gibson made his third open records request on May 29, 2014, this time addressed to Knox County Treasurer Jack Ketcham and requesting a "copy of all checks made out to McVey Land Development, from the Knox County Treasurer" during the specified years. On June 2, 2014, Mr. Ketcham replied: "[W]e have contacted the bank and they are going to give us a time they will be able to produce the copies and they will give us a cost for making copies of the checks. Once the bank contacts our office with the cost and when the checks can be produced we will be contacting you."
Mr. Gibson initiated an appeal to the Attorney General concerning all three requests, which was received in this office on June 11, 2014. Knox County Attorney Gilbert E. Holland responded to the appeal on June 19, 2014. Since Mr. Holland's response refers to all three requests as pertaining to the County Judge/Executive rather than the Knox County Treasurer, we shall treat them accordingly. In pertinent part, Mr. Holland states:
The Judge Executive's Office received the costs of retrieving this information yesterday. The costs would be twenty five cents ($ 0.25) per check copied and thirty-five dollars ($ 35.00) per hour of account research required to obtain the checks requested. We do not know how many hours would be required. The Judge Executive is willing to authorize the release of this information if Mr. Gibson is willing to pay the costs associated with retrieving the requested checks. In the alternative, the Judge Executive is willing to provide at no cost a list of check numbers to whom they were written and the amount of each check made to McVey Trucking or McVey Land Development if this would be sufficient response to Mr. Gibson's requests.
We find no procedural violation of the Open Records Act in regard to Mr. Gibson's third request. Mr. Ketcham complied with KRS 61.872(5), to the extent possible, by giving a detailed explanation of the reason the checks were not immediately available. Subsequently, when more information was available, Mr. Holland timely provided Mr. Gibson with the additional details.
With regard to the disposition of the request, a public agency "must provide ? copies of ? cancelled checks," but "[p]ursuant to KRS 61.874(3), [the agency] may also require payment of the additional cost, if any, incurred in acquiring the copies from the bank." 10-ORD-140. Therefore, we find no substantive 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 proceedings.
Distributed to:
Mr. Dennis GibsonHon. J. M. HallGilbert E. Holland, Esq.