Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Ravenna ("City") violated the Open Records Act in its disposition of the open records request of Mr. William Van Cleve ("Appellant"). For the reasons stated below, we find that the City's failure to issue a written response violated the procedural requirements of the Open Records Act.
Appellant submitted an open records request, dated February 20, 2018, to the City. Appellant requested "a copy of all General Fund bank statements that reflect all deposits and all debits from this account from January 1, 2017 through January 31, 2018." On February 26, 2018, Appellant submitted an appeal with this Office indicating that he "did not receive a written response within three (3) business days as required by the Kentucky Open Records Act. "
The City responded to the appeal through counsel, Brooks Stumbo, Esq., on February 28, 2018. Mr. Stumbo acknowledged that the City received the open records request, but he argues that Appellant's "contention that the City failed to produce the records within three (3) days of the original request is without merit." Mr. Stumbo recites the search for records by the City noting that:
When the City received the requests, it attempted to make copies from its own banking records for Mr. Van Cleve. However, because many of the City's records were on carbon-copy paper (customary for deposit tickets), the copies were too dark to read. Thereupon, the City had the bank make the requested copies from their records at a charge of $ 31.75. These records were delivered to Mr. Van Cleve on February 21, 2018 and I have attached a receipt showing his payment of $ 31.75 to the City for the copies.
The City does not dispute Appellant's claim that he did not receive a written response in its response to the appeal. Also, the City does not state that it disclosed all existing responsive documents in its possession, and it does not cite an applicable statutory exception for any documents withheld.
We find that the City did not comply with the procedural requirements of the Open Records Act. Regarding procedure, the Open Records Act requires a public agency to issue a written response to an open records request within three (3) days. KRS 61.880(1) provides, in relevant part:
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.
In construing the language of KRS 61.880(1), the Kentucky Court of Appeals state: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 07-ORD-226; 12-ORD-211; 17-ORD-179. The Attorney General has consistently recognized 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; 05-ORD-190; 09-ORD-186; 12-ORD-085; 15-ORD-152. Thus, the required written response is mandatory, and the City committed a procedural violation when it failed to issue a written response for this request for records.
By neglecting to issue a written response, the City also failed to advise Appellant whether the requested records exist. We have consistently found that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency). 04-ORD-205, p.4; 12-ORD-056; 11-ORD-122. The City failed to discharge its duty under the Open Records Act by neglecting to inform Appellant whether the requested record exists. The City did not correct this omission in its response to the appeal. Therefore, we find that the City violated KRS 61.880(1).
It is apparent that the City attempted to comply with the request by providing Appellant copies of the "carbon-copy paper" records in its possession. The City also documented its efforts to identify and locate documents in its response to this appeal. However, Appellant argues that he was denied access to "the General Fund bank statements as described in my open records request." This Office generally declines to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-91, p.4; 10-ORD-195; 14-ORD-204. We have consistently recognized that "objections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 14-ORD-204; 10-ORD-178, p.2; 09-ORD-101. Therefore, we decline to determine whether the "carbon-copy paper" records disclosed by the City are the documents described by Appellant as "General Fund bank statements." Rather, KRS 61.880(2)(a) 1 requires the Attorney General to "review the request and? issue a written decision, stating whether the agency violated the provisions of KRS 61.870 to 61.884." Pursuant to KRS 61.880(2)(c) 2, the burden of proof in an appeal to the Attorney General rests with the agency. We find that the City did not meet its burden.
A party aggrieved by this decision shall appeal it 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 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."
2 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."