Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in these consolidated open records appeals, filed by Lawrence Trageser on July 25, 2015, is whether the City of Taylorsville Police Department and the Taylorsville City Clerk subverted the intent of the Open Records Act, short of denial of inspection, by failing to adopt rules and regulations conforming to the Open Records Act and to display the rules and regulations in a "prominent location accessible to the public." KRS 61.876(1) and (2). The police department and city clerk promptly responded, through counsel, that because the city clerk is statutorily assigned the duty of official custodian of city records, it "would not be reasonable" for the police department to post the notice. KRS 83A.085(3)(b). In support, counsel noted that "[t]he Police Chief turns over to the City Clerk any Open Records request addressed to or received by the Police Chief . . . ." Additionally, counsel indicated that after Mr. Trageser identified the problem the city clerk took immediate remedial action by posting the rules and regulations and informing Mr. Trageser of the correction by telephone.
Counsel for the police department and the city clerk questioned whether complaints alleging failure to comply with KRS 61.876(1) and (2) triggered the agencies' duty to respond under KRS 61.880(1), and whether subsequent appeals were appropriate for review by the Attorney General under KRS 61.880(2). KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
Because authority is vested in the Attorney General to adjudicate, "as if the record had been denied," complaints alleging that the "intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, " we proceed to an adjudication of the issue presented. We find that the Taylorsville City Clerk subverted the intent of the Open Records Act by failing to adopt and display rules and regulations required by KRS 61.876(1) and (2) prior to July 21, 2015. Because KRS 61.876(2) does not specifically state where the rules and regulations must be displayed, we find that the Taylorsville Police Department did not subvert the intent of the Act by failing to adopt and display the rules and regulations prior to, and after, July 21, 2015.
1. Attorney General's authority under KRS 61.880(4) and agency's obligation to respond to complaint arising under this provision .
The issue Mr. Trageser raises in his July 29 open records appeals to the Attorney General has been the subject of a number of appeals over time. This includes an appeal filed by Mr. Trageser against the Spencer County Fiscal Court earlier this year. 1 Pursuant to KRS 61.880(4), this office is required to adjudicate a complaint alleging subversion of intent of the Open Records Act as if the complaint alleged denial of access to a public record. See, e.g., 99-ORD-69 (finding that the University of Louisville did not subvert the intent of the Act by failing to comply with KRS 61.876(2)).
2. KRS 61.876(1) and (2) require public agencies to adopt rules and regulations conforming to the Open Records Act, and the failure to do so in accordance with these provisions subverts the intent of the Act .
KRS 61.876(1) and (2) state:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records , to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
(Emphasis added.)
KRS 61.876(1) "establish[es] a minimum standard for agency compliance." 95-ORD-49, p. 4. An agency:
complies with this provision if it adopts rules and regulations limited to the items set forth in KRS 61.876(1)(a) through (d), or if it adopts more comprehensive rules and regulations supplementing the list of items.
Id. As long as those rules and regulations do not fall below the minimum standard set forth in KRS 61.876(1), and are properly displayed in a prominent location accessible to the public as required by KRS 61.876(2), the agency fulfils its duty under the law. 2
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 See 15-ORD-017.
2 See 200 KAR 1:020 Section 6 for KRS 61.876 compliant rules and regulations form that may be adapted to agency use.