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 Kentucky Board of Dentistry violated the Kentucky Open Records Act in the disposition of attorney Daniel E. Moriarty's requests, made on October 10, 2014, for copies of records related to complaints, charges, and disciplinary actions against licensees Dr. Arlene Baluyut and Dr. Earlene Morgan. Since the Board failed to respond to Mr. Moriarty's request, we find that it violated the Act.
Mr. Moriarty telephoned the Board of Dentistry on November 25, 2014, after having received no response, and was informed orally that the Board was denying the request due to an ongoing investigation and a written response would be forthcoming. Having still received nothing in writing by December 5, 2014, Mr. Moriarty initiated an appeal to the Attorney General. The Board has submitted no response to this appeal.
Since the Board had the duty to respond to Mr. Moriarty's request in writing within three business days under KRS 61.880(1), we must conclude that it procedurally violated the Open Records Act by not doing so. Furthermore, since the Board has cited no exception under KRS 61.878 to the duty to disclose public records, nor explained how such exception applies to the records requested, as required by KRS 61.880(1), it has not met its burden of proof under KRS 61.880(2)(c). Therefore, we must find that the Board violated the substantive provisions of KRS 61.872(1).
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:
Daniel E. Moriarty, Esq.Brian Judy, Esq.David Beyer, Esq.