Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
James M. Perry initiated this appeal challenging the disposition by the Droege House 1 of a request that he made on or around September 8, 2014, for one copy each of his intake form documenting the date and time when he began the inpatient program, the exit form documenting his release from the program, and the receipt showing that he was paid in full. 2 Mr. Perry advised in his letter of appeal that on September 18, 2014, he received a copy of a document that he did not request and still needed a copy of his "release [papers]" documenting his completion of the 90-day program at Droege House in addition to a copy of the receipt. Attached to his appeal was a copy of a document entitled, "Notice to Court or Agency," dated September 12, 2014, reporting the status of Mr. Perry. The record on appeal does not contain a copy of any written response from Droege House to Mr. Perry's request. His undated appeal was received in this office September 25, 2014.
This office issued a Notification to Agency of Receipt of Open Records Appeal on September 29, 2014, to both Robin LaBare, Administrative Assistant, whose name appeared on the document attached to Mr. Perry's appeal, and Legal Counsel Karen Hill, advising that under 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Friday, October 3, 2014." As of this date, no response has been received nor has anyone contacted this office to request additional time in which to respond. In the interest of ensuring a correct resolution of Mr. Perry's appeal, this office contacted Droege House after the deadline for a response had passed and left a message for the Executive Director. The call was not returned. On October 15, 2014, this office again contacted Droege House by telephone in order to inquire as to whether anyone wished to respond on its behalf given that our decision is based on the written record only. Per the request of Ms. Hill this office then faxed a copy of the Notification previously sent as well as the attachments for the agency to review in preparing a written response. This office advised that any response must be received on or before October 20, 2014. As of this date, no response from Droege House has been received. If Droege House is a public agency, such inaction by it upon receipt of a request made under the Open Records Act constitutes a violation of KRS 61.880(1).
A public agency must comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 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 that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 12-ORD-085. Failing to respond, as the Droege House did here, violates the mandatory language of the Act.
The Droege House had three different opportunities to discharge its duty under KRS 61.880(1) ; first, upon receipt of Mr. Perry's request; second, upon receiving the Notification of his Appeal from this office; and third, upon receiving the Notification, including attachments, from this office again. It is undisputed that the Droege House has not issued a written response to Mr. Perry's request. If Droege House is a public agency, it is not permitted to elect a course of inaction. See 05-ORD-190; 11-ORD-038; 12-ORD-085. As the Attorney General has long recognized, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5.
In as much as the Droege House failed to respond upon receipt of Mr. Perry's request, and upon receipt of the Notification of his Appeal, it has failed to advance a legal argument in support of its apparent denial (or partial 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. . . ." 3 Accordingly, if the Droege House is a public agency, it must provide Mr. Perry with copies of any existing records in its custody which are responsive to his request unless the Droege House can and does belatedly 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). Pursuant to KRS 61.872(3)(b), the Droege House's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 4 If the Droege House "does not have custody or control" of any records identified in Mr. Perry's request, it "shall notify [Mr. Perry] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). If the Droege House is a public agency, it stands in violation of the Open Records Act until it performs these functions. See 09-ORD-186; 10-ORD-093.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
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