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 Mt. Eden Fire Protection District violated provisions of the Open Records Act by failing to respond, in writing and within three business days, to Lawrence Trageser's February 6, 2015, request. His request was addressed to "Mt. Eden Fire District, Official Custodian of Records, Attention: Counselor Jim Hodge [district counsel]." Mr. Trageser requested access to:
1)records reflecting the confirming letter of need or request from the Spencer County Judge and/or the Spencer County Fiscal Court for the financial aid, cooperation, and dispatching of Mt. Eden Fire District personnel and the spending of their monetary resources for aiding Spencer County in medical responses . . .; and
2)records that identify the cell phone or land line number provided and paid for by the fire district for Mt. Eden Fire Chief Doug Herndon's fire district business in 2013-2014. 1
Having received no response to his request, Mr. Trageser initiated this appeal on February 23, 2015. This office issued notification of receipt of his appeal, per 40 KAR 1:030 Section 2, on February 26, 2015.
On March 9, 2015, the district responded to the appeal through counsel. Counsel explained that the delay in his response was occasioned by family illness. He advised:
My office represents Mt. Eden Fire Protection District and in response to the above open records request, I am enclosing [a] copy of the district's Notice of 11/5/2012 containing the information sought by the requester which was utilized to schedule him a review of the district's records on 1/23/2015, which he attended.
He attached a copy of the district's KRS 61.876(1) "Notice [of] Administrative Regulations Governing Inspection of the Mt. Eden Fire Protection District." The notice read, in part:
Pursuant to KRS 61.870 to 61.884, the public is notified that, as provided herein, the public records of the above named Agency of the Commonwealth of Kentucky are open for inspection by any person on written application to Mt. Eden (name) Fire Dist. (title), official custodian of the public records of the Mt. Eden Fire District (state administrative agency) whose address is 260 Van Buren Rd., 40046 or to Doug Herndon (name), Chief (title), official custodian of the public records of the Mt. Eden Fire Dist. (office, bureau, division, etc.) whose address is 260 Van Buren Rd., 40046 , from 9 a.m. to 4 p.m., Monday through Friday, each week, except holidays. 2
Counsel did not address Mr. Trageser's request for the letter of confirmation or a record containing Chief Doug Herndon's publicly issued phone or land line number. By letter dated March 17, the district provided Mr. Trageser with a copy of records responsive to his request for the letter of confirmation but did not address his request for records containing Chief Herndon's phone or land line number.
Mr. Trageser replied to the district's response on March 11, explaining that the district's headquarters, located at 260 Van Buren Road, was destroyed by fire in 2014, that the district is currently housed at a different location, and that the referenced notice is not posted in that building. He stated that he hand-delivered an earlier open records request to Chief Herndon at a board meeting, receiving a response two weeks later. He also provided copies of requests submitted to district counsel before and after the February 6 request from which this appeal arises and the responses issued by district counsel without objection. He objected to the inconsistencies in the district's open records written policy and its actual practices. At a minimum, he maintained, if his request was misdirected to district counsel, counsel should have notified him that he is not custodian and "furnish [ed] the name and location of the official custodian of the agency's public records" per KRS 61.872(4). Mr. Trageser characterized the remainder of counsel's letter as nonresponsive noting that the response did not address his actual requests. Responding to the district's claim that he was previously afforded access to district records, he explained that it was Mike Woodford, and not he, who exercised the right to inspect district records, pursuant to Mr. Woodford's request, on January 23, 2015, although he accompanied Mr. Woodford at Mr. Woodford's request.
By email transmitted to this office on March 24, district counsel advised:
As counsel for Mt. Eden Fire Protection District, I am not their official custodian of records. That role falls to their chief, Doug Herndon, per their notice of 11/5/12, previously filed herein. No mention of his cell phone was made in my prior response to the requester as no records exist of any such cell phone furnished to him by the district and no reimbursement of any of his cell phone bill has been made to him by the district. The cited cell phone number is his personal cell phone obtained by him and paid for by him with no connection to the district.
We find that the district violated KRS 61.880(1) by failing to respond to Mr. Trageser's request, in writing, on or before the third business day after receipt of his request. The district also violated KRS 61.872(5), if circumstances warranted a delay in production of the records, by failing to provide Mr. Trageser with a detailed explanation of the cause for delay in the production of the records that included the earliest date on which the records would be available. Finally, the district violated KRS 61.872(4), if district counsel lacked authority to respond to open records requests on behalf of the district, by failing to notify Mr. Trageser that district counsel was not official custodian of records and by failing to furnish the name and location of the official custodian of the district's records. On March 24 the district partially responded to Mr. Trageser's February 6 request for records identifying the "cell phone or land line number provided and paid for by the fire district for Mt. Eden Fire Chief Doug Herndon's fire district business." The district did not respond to his request for "records reflecting the confirming letter of need or request from the Spencer County Judge and/or the Spencer County Fiscal Court for the financial aid, cooperation, and dispatching of Mt. Eden Fire District personnel . . . ."
The district violated KRS 61.880(1) by failing to respond to Mr. Trageser's request in writing and within three business days. The district also violated KRS 61.872(5), if a delay in its final response was warranted, by failing to provide Mr. Trageser with a detailed explanation of the cause for delay and stating the "earliest date on which the public records will be available." With respect to these violations, 15-ORD-037 is controlling. A copy of 15-ORD-037 is attached and its reasoning adopted in full. That decision, which formed the basis of our analysis in 15-ORD-045, a similar dispute involving the Mt. Eden Fire District, was issued on March 9, 2015. Although the request and appeal before us pre-date these decisions, sufficient time has now elapsed to permit the district to correct the deficiencies identified in each. We trust that the district has made these corrections and that these deficiencies will not recur. If they do, the requester's recourse may lie in the courts.
Based on the inconsistencies that exist between the district's KRS 61.876(1) written notification governing inspection of its records and its practices, the district must also update and correct that notification. The notification incorrectly identifies the district's principal office as the now abandoned site located at 260 Van Buren Road that it formerly occupied. It also identifies " Mt. Eden (name) Fire Dept. (title)" as one of two official custodians of its records. These inaccurate entries must be corrected. Moreover, the district does not refute Mr. Trageser's allegation that the notification has not been posted at its current location as required by KRS 61.876(2). If it has not been posted "in a prominent location accessible to the public" in the district's current headquarters, the district must take immediate corrective measures to address this deficiency. Finally, the district does not refute Mr. Trageser's allegation, supported by proof, that district counsel, as well as Chief Herndon, has responded to his requests without objection, albeit in an untimely fashion. If counsel is not authorized to respond, "under authority" of Chief Herndon per KRS 61.880(1), he should discontinue this practice and furnish Mr. Trageser, and all other open records requesters who misdirect their records requests to him, with "the name and location of the official custodian of the agency's public records. " The Open Records Law requires the official custodian, whether Chief Herndon or someone else, to adopt appropriate measures to ensure a timely written response to all open records requests and timely disclosure of all nonexempt records.
Finally, Mr. Trageser suggests that the district has been less than forthcoming in belatedly responding to that part of his request relating to records identifying cell phone or land line phone numbers provided to Chief Herndon for fire district business by the fire district. The district states that "[t]he cited cell phone number is [Chief Herndon's] personal cell phone obtained by him and paid for by him with no connection to the district." While Mr. Trageser expresses "reasonable confidence that the Mt. Eden Fire Department is paying for a cellular phone for Chief Doug Herndon" and indicates that he is "in the process of acquiring documents" that substantiate his claim, Mr. Trageser has failed to make a " prima facie showing that such records do exist." 11-ORD-74, p. 3. As this office has previously determined:
"A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. "A complainant may overcome an agency's denial that records exist, but 'must make a prima facie showing that such records do exist.'" 14-ORD-097; Bowling v. Lexington-Fayette Urban Cnty. Gov't., 172 S.W.3d 333, 341 (Ky. 2005).
15-ORD-11, p. 9. Mr. Trageser's belief that the records at issue exist does not satisfy the required prima facie showing.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Mr. Trageser emphasized that he was "not asking for monthly bills only confirmation of the existence of such phone and its number."
2 The district used a template that appears at 200 KAR 1:020 Section 6, entering the pertinent information by hand and without modification for the district's particular needs. Some of these handwritten entries are difficult to read.