Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Craig Stone appeals the City of Bloomfield's response to his July 27, 2015, request for seven categories of records. The city responded, through City Clerk Jean Jury, on July 31, 2015, advising Mr. Stone that his request would be honored by U.S. Mail transmission of the records upon prepayment of copying and postage fees. Alternatively, the city invited him to review the records at the city's office, free of charge, and obtain copies of records for the stated costs. The city's response was mailed to Mr. Stone but did not reach him until after he initiated this appeal.
On appeal, Mr. Stone asserted:
. that the city failed to respond to his request "in the allotted 3-day window per KRS 61.880(1)";
. that a city employee, other than Jean Jury, 1 contacted him by telephone on July 30 to advise him that the records would be faxed to him, but he declined, explaining to the employee that he was legally entitled to a written response; and
. that he did not receive a written response from the employee, who was "operating outside of his duties by contacting [Mr. Stone]" since Ms. Jury is city clerk, or from Ms. Jury herself.
The city responded, through Ms. Jury, that the KRS 61.880(1) response, mailed on July 31, should have reached Mr. Stone on August 3, the day he initiated his open records appeal. She indicated that, as of August 10, she was awaiting prepayment of reproduction and postage charges before mailing Mr. Stone copies of the requested records. Based on these facts, we find that if Mr. Stone faxed his request on July 27, the city's response was issued one day late. In all other respects, the response was consistent with the requirements of the Open Records Act.
KRS 61.880(1) states:
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.
Neither Mr. Stone nor Ms. Jury indicate whether Mr. Stone faxed his request, dated July 27, on July 27. If he did, the city's response was issued one day late. July 27 fell on a Monday. See, e.g., 96-ORD-207; 10-ORD-010; 11-ORD-004. The clock began to run on the city's response time on Tuesday, July 28, ran through Wednesday, the 29th, and expired on Thursday, July 30. By these calculations, the city's response, issued on July 31, was one day late. U.S. Mail delays resulted in the delivery of the city's response on or about August 3, the day on which Mr. Stone initiated his appeal. The city was not responsible for these mail delays, but may have miscalculated, by one day, the date on which its response should have been issued in contravention of KRS 61.880(1).
The city did not violate KRS 61.880(1) when a city employee, other than Ms. Jury, telephoned Mr. Stone to arrange for transmission of all responsive records by fax. The employee, who, we trust, was acting under authority of Ms. Jury, 2 cannot be faulted for attempting to expeditiously address Mr. Stone's request and arrange for immediate transmission of the records identified in the request. KRS 61.880(1) does, in fact, state that the agency shall determine within three business days after receipt of the request "whether to comply with the request and shall notify in writing the person making the request, within the three day period, of its decision." (Emphasis added.) The city fulfilled this requirement, albeit one day late, by notifying Mr. Stone, in writing, that the city would honor his request by means of on-site inspection or delivery of copies through the mail upon prepayment of reproduction and postage fees. 3 We find no error in its actions.
The City of Bloomfield stands ready to honor Mr. Stone's request by whichever of the statutory means he prefers. With the exception of the possible one day delay in issuing its final written response, we affirm the city's disposition of Mr. Stone's request.
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 Pursuant to KRS 83A.085(3)(b), the city clerk is assigned the duties of official custodian of records for the city she serves.
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2 KRS 61.880(1) clearly states that the agency's response "shall be issued by the official custodian or under [her] authority ." (Emphasis added.) Absent evidence that the employee's acts were ultra vires , we find no error in his telephone contact with Mr. Stone.
3 See KRS 61.872(2) and (3).
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