Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Tom Fox appeals the City of West Buechel's failure to respond to his August 18, 2015, request to inspect and copy monthly account statements and images of checks for two accounts, identified by account name, bank, and the last four digits of their account numbers for a five and seven month period, respectively. The city did not respond to Mr. Fox's request. Nor did the city respond to this office's 40 KAR 1:030 Section 2 1 notification of receipt of Mr. Fox's open records appeal. Its inaction constituted a procedural and substantive violation of the Open Records Act.
KRS 61.880(1) establishes specific legal requirements that are applicable to all public agencies that receive an open records request. It provides:
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.
The City of West Buechel violated this statutory requirement by failing to respond in writing, and within three business days, to Mr. Fox's request. Mr. Fox was entitled, by law, to a written response notifying him that the city would either comply with his request or that it would not comply with his request. We remind the city that the procedural requirements of the Open Records Act "are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5 (city failed to comply with procedural requirements of the Act but properly withheld non-final report transmitted to it by a hired consultant); 11-ORD-218 (fire department violated KRS 61.880(1) by issuing a perfunctory response to records request).
No argument is advanced in support of the denial of Mr. Fox's request for financial records from two of the city's general fund accounts for a five to seven month period, and none can be located. In an early open records opinion, the Attorney General recognized that "[a]mounts paid from public coffers are perhaps uniquely of public concern. We believe the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc." OAG 90-30, p. 6, cited in 12-ORD-015 (pursuant to KRS 61.870(1)(h), private entity receiving twenty-five percent or more of the funds it expends in the Commonwealth from state or local authority funds was required to disclose records relating to expenditures as long as expenditures related to "functions, activities, programs, or operations funded by state or local authority" ). Stated simply, "wherever public funds go, public interest follows." OAG 76-648, p. 2, cited in 12-ORD-086 (record contained insufficient evidence to establish private entity's public agency status under KRS 61.870(1)(h)). With the narrow exception of bank account numbers 2 that appear in the requested records, we find that the City of West Buechel violated the Open Records Act in effectively denying Mr. Fox's request and should make immediate provision for his inspection and/or reproduction of those records.
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.
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