Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Al Nesteruk appeals the City of Goshen's failure to respond to his March 8, 2016, written allegation that the city is in continuing violation of KRS 61.876(1) and (2) because it has not "adopte[d] rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, " and "display[ed] a copy of its rules and regulations . . . in a prominent location accessible to the public." Confining our review to the open records issues properly presented to this office, we find that the city violated KRS 61.880(1) by failing to respond to Mr. Nesteruk's written complaint, but did not violate KRS 61.876(1) and (2) by failing to adopt and post rules and regulations governing access to its public records. 1
Upon receipt of the Notification of Receipt of Mr. Nesteruk's appeal, the city responded to his allegations. The city explained that it responded to Mr. Nesteruk's March 15 appeal on March 22, advising him that KRS 61.876(1) rules and regulations were adopted and posted in 2012 and providing him with a copy of the posted rules and regulations. Our review of the rules and regulations confirms compliance with KRS 61.876(1) with the narrow exception of identification of the city's principal office. This deficiency can be easily corrected by a slight amendment to the rules and regulations. The rules and regulations identify the Goshen City Clerk as the official custodian of records for purposes of KRS 61.870(5), KRS 61.872(2), KRS 61.876(1)(b), and KRS 61.880(1). This designation of the clerk as official custodian is mandated by KRS 83A.085(3)(b). While inclusion of the city clerk's name might enhance "full access to public records, " KRS 61.876(1)(b) requires "[t]he title and address of the official custodian of the public agency's records" only. In all other respects, the City of Goshen's rules and regulations satisfy the requirements of KRS 61.876(1) and (2). Our review of the rules and regulations does not support the claimed violation of KRS 61.876(1) and (2).
Nevertheless, we find that the City of Goshen was obligated to respond to Mr. Nesteruk's written allegations even though the allegations were not expressly identified as a complaint. Numerous open records decisions support this view. See, e.g., 16-ORD-013 (appeal of KRS 61.87691) and (2) noncompliance precipitated by unanswered complaint); 16-ORD-015 (appeal of KRS 61.876(1) and (2) initiated by unfulfilled request for copies of the agency's adopted and posted rules and regulations) . Regardless of whether an appeal is initiated under KRS 61.880(2) 2 or KRS 61.880(4), 3 the issue of compliance with KRS 61.876(1) and (2) "shall be subject to the same adjudicatory process." Where, as here, the public agency fails to respond to the initial complaint or request, the agency violates KRS 61.880(1). 4 Mr. Nesteruk's request reached the city on March 8. 5 The city issued no written response within the three business day statutory time frame, and its belated response was issued seven days after he initiated this appeal. Accordingly, we find that the City of Goshen violated KRS 61.880(1) when it failed to issue a timely, written response to Mr. Nesteruk's complaint.
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. Nesteruk objects to the content of the city's website and its code of ordinances, the designation of regular business hours, and the absence of adequate signage to enable visitors to easily navigate its offices. These questions do not arise under KRS 61.876(1) and (2), or any other provision of the Open Records Act, and the Attorney General has no authority to review them in the context of an open records appeal.
2 KRS 61.880(2)(a) states:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
3 KRS 61.880(4) states:
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.
4 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.
5 Mr. Nesteruk sent his complaint via Priority Mail 1-Day, and the tracking information he enclosed confirms delivery on March 8.