Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented on appeal is whether Radcliff Police Department violated the Open Records Act when it failed to respond to Joshua Powell's April 5, 2019, open records request.
In his request, Appellant asked for seven different types of records for specific sets of dates, including, but not limited to, the name of the technology coordinator, copies of "Daily Crime Analysis Report," "Weekly Crime Analysis Report," "Weekly Personnel Inspection Report," "Monthly Unit Activity Report," "Vehicle Equipment and Inspection Form," and "any internal or external investigations regarding alleged or actual misconduct." Having received no response to his request, Appellant initiated this open records appeal by letter dated April 23, 2019, and received in this office on April 25, 2019. For the reasons that follow, we conclude that the Radcliff Police Department violated the Open Records Act.
On April 25, 2019, the Attorney General sent a copy of Appellant's appeal, along with our notification of receipt of open records appeal, to Captain Willie Wells, Special Services Coordinator for Radcliff Police Department, and Michael Pike, Radcliff County Attorney. Although that notification clearly states that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no response to our notification, and have not been advised what, if any, action the Police Department has taken relative to Appellant's appeal.
The Radcliff Police Department's failure to respond to Appellant's April 5, 2019, request in a proper and timely fashion constitutes a violation of KRS 61.880(1). That statute 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 Radcliff Police Department had not one, but two, opportunities to comply with KRS 61.880(1), by responding to Appellant's original request, and by responding to his request upon receipt of this office's notification of appeal. The Police Department failed to do so and failed to give any indication why it has not complied.
Because the Radcliff Police Department did not respond to Appellant's request or this office's notification of appeal, it advanced no legal basis for denying that request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency...."
The Radcliff Police Department's failure to respond to the open records request is equivalent to a denial of that request without specific support in the form of "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. " KRS 61.880(1); 02-ORD-116. Accordingly, the Radcliff Police Department should immediately respond to Appellant's request or otherwise make the records available for his inspection.
A party aggrieved by this decision may 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 proceedings.