Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
Darrell W. Peters sent a letter, on July 25, 2016, to the Hyden-Leslie County Water District ("Water District"), requesting a copy of the schedule of regular meetings of the Water District, as well as a copy of the last approved minutes of the agency. Mr. Peters provided a certified mail receipt to show delivery of the letter on August 2, 2016. Mr. Peters appealed to this Office, by letter dated August 9, 2016, that he had not received a response to his records request. By letter of August 16, 2016, Leihman Howard, Jr., Manager, Hyden-Leslie County Water District, responded to Mr. Peters' request by attaching a copy of the Water District's minutes for the meeting held on April 28, 2016. Mr. Howard followed up by letter on August 17, 2016, to clarify that the April 28th minutes were the last approved minutes of the agency as the May and June 2016 meetings were cancelled due to lack of a quorum and that the minutes of the July 2016 meeting will not be approved until August 25, 2016. Mr. Howard's letter of August 16th also stated that the Water District "holds its regular scheduled meetings on the last Thursday of each month at 4:00 pm at the business office located at 356 Wendover Road, Hyden, KY 41749."
As a public agency, the Water District is obligated to comply with the procedural and substantive provisions of the Open Records Act. In relevant part, KRS 61.880(1) requires public agencies to notify the person making the request, within three (3) days after receipt of the request of its decision whether to comply with the request. Furthermore, this Office has consistently held that "the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, p. 3. We note that KRS 61.872(5) is the only provision in the Act that authorizes postponement of access to public records beyond three business days, and then only if the records are "in active use, in storage or not otherwise available." However, the Water District provided the minutes requested by Mr. Peters after he initiated this appeal and, according to 40 KAR 1:030 Section 6, a records access dispute is moot if the requested documents are made available after the requester initiates an open records appeal. 11-ORD-189, p. 3. As the Water District provided the requested minutes, that portion of this appeal is now moot.
As to Mr. Peters' request for a copy of the schedule of regular meetings for the Water District, we find that the agency violated KRS 61.880(1) by not providing the requested record. Pursuant to KRS 61.820(2), "[a]ll public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public." It is this record, required by KRS 61.820(2), that Mr. Peters sought through his request to the Water District, and which should have been provided within three business days. Merely informing Mr. Peters of the Water District's schedule of meetings does not meet the requirements of KRS 61.880(1). The failure to provide the requested schedule of regular meetings is a substantive violation of the Open Records Act.
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.