Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Elliott County Judge-Executive's Office violated the Open Records Act in failing to issue a timely written response upon receipt of Melissa Bowman's May 6, 2019, request for the following records and information: 1
1. The number of dogs euthanized for the period[] of 2018-2019, including any documentation of breed, sex, location found and stray or owner surrender;
2. The name of the Elliott county Animal Control Officer;
3. The name of cleaning agent used in the shelter and the frequency of its use;
4. Rabies vaccination records for dogs adopted or taken from the shelter;
5. Any applications or veterinary references obtained on adopters;
6. Records of intake and output of sick and/or injured animals;
7. Any documentation and/or procedures of contacts with rescue organizations to assist in placing dogs [.]
Ms. Bowman sent her May 6, 2019, request via certified mail and the documentation attached to her appeal confirms that it was delivered on May 10, 2019. Accordingly, pursuant to KRS 61.880(1), the Judge-Executive's Office was required to mail a written response within three business days following receipt, on May 15, 2019. Having received no response, Ms. Bowman initiated this appeal by letter dated May 22, 2019, on behalf of Kentuckians Vote for Animals.
This office issued a Notification to Agency of Receipt of Open Records Appeal to Elliott County Judge-Executive Myron Lewis and Elliott County Attorney Johnie Lewis Jr., on May 28, 2019, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Monday, June 3, 2019." The Attorney General did not receive any written response from the agency or its legal counsel; nor has anyone contacted this office to request additional time in which to submit a response. This inaction by the Judge-Executive's Office constitutes a violation of KRS 61.880(1).
As a public agency, the Judge-Executive's Office must comply with procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests made under the Open Records Act. Pursuant to KRS 61.880(1):
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.
(Emphasis added). The language of KRS 61.880(1) "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). A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act . . . ." Id. See 04-ORD-208; 12-ORD-085. Failing to respond, as the Judge-Executive's Office did here, violates the mandatory language of the Act. 2
The Judge-Executive's Office had two opportunities to fully discharge its duty under KRS 61.880(1): (1) upon receipt of Ms. Bowman's request; and (2) upon receiving the Notification from this office. A public agency such as the Judge-Executive's Office is not permitted to elect a course of inaction. See 17-ORD-129. The Attorney General has consistently recognized that 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." 04-ORD-084, p. 3 (citing 93-ORD-125, p. 5); 05-ORD-190; 09-ORD-186; 12-ORD-085. Inasmuch as the Judge-Executive's Office did not respond to Ms. Bowman's request, it necessarily failed to advance a legal argument in support of his apparent denial of that request.
Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." The Judge-Executive's Office must provide Ms. Bowman with a copy of any existing records in the custody of the agency that are responsive to her May 6 request unless the Judge-Executive's Office can satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (p). Pursuant to KRS 61.872(3)(b), the "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 3 If the Judge-Executive's Office "does not have custody or control" of any records identified in Ms. Bowman's request, he "shall notify [Ms. Bowman] and shall furnish the name and location of the official custodian of the agency's public records." 4 KRS 61.872(4). Compliance with provisions of the Open Records Act "is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public." 03-ORD-067, p. 2 (citing 93-ORD-125, p. 5); 11-ORD-042; 15-ORD-152. In failing to perform these functions, the Judge-Executive violated the Open Records Act. See 09-ORD-186; 10-ORD-093.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
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