Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Gallatin County Planning Commission ("Commission") violated the Open Records Act in its disposition of Michael Murphy's June 18, 2019, request for "[a]ll written resignation[s] of the [City of Glencoe] Board of Adjustment members that occurred on or before March 20, 2018 during the regular meeting of the city council" and "[a]ll documents pertaining to the mayor abolishing the Board of Adjustment and members [ sic ] that occurred on or before March 20, 2018 during the regular meeting of the city council." For the reasons that follow, we find that the Commission violated the Act.
Despite sending a follow-up letter to the Commission on September 16, 2019, Mr. Murphy received no response to his request prior to initiating this appeal on September 28, 2019. KRS 61.880(1) requires a public agency to respond to an open records requests within three days, excluding weekends and legal holidays. The Commission's failure to do so plainly violated the Act.
On October 3, 2019, James Hansen, the director of the Commission, responded to the appeal in a manner that failed to clarify the open records issues. First, he stated that "the City of Glencoe Board of Adjustment operates independently from the County and as such the Mayor would act as the appointing authority with Glencoe City Council providing confirmation of the replacement as well as other administrative duties." He further indicated that he had "no firsthand knowledge" of what had occurred in March 2018. In addition, Mr. Hansen provided a copy of his September 18, 2018, response to a separate open records request, in which Mr. Murphy had asked for "copies of correspondence related to the removal of Glencoe Board of Adjustment members in 2014 and 2018." 1Finally, Mr. Hansen stated: "It appears the members of the Glencoe Board of Adjustment may have been suspended due to non-compliance with Continuing Education requirements possibly on more than one occasion, however, I could, again, find no request from the City of Glencoe for the County to intercede and replace any missing member or members."
We note that Mr. Murphy did not ask for "request[s] from the City of Glencoe for the County to intercede and replace any missing member." Rather, he specifically asked for "written resignation[s]" and "[a]ll documents pertaining to the mayor abolishing the Board of Adjustment and members."
While KRS 100.217(8) requires an appointing authority who "remove[s] a member of the board of adjustment [to] submit a written statement to the [planning] commission setting forth the reasons for removal," it does not appear to empower the planning commission to appoint a replacement. 2Therefore, a search limited to any "request[s] from the City of Glencoe for the County to intercede and replace any missing member" would not be calculated to produce any records responsive to Mr. Murphy's request. A public agency has the duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96 (quoting
Cerveny v. Central Intelligence Agency , 445 F.Supp. 772, 775 (D. Col. 1978).
Nowhere in Mr. Hansen's response to this appeal did he indicate whether the Commission possesses any records responsive to Mr. Murphy's request, or whether it conducted a search that would encompass such records. A public agency's "first obligation under the Open Records Act [is] to identify responsive records." 15-ORD-109. The Commission did not do so, and has yet to make any substantive response to either item of Mr. Murphy's June 18, 2019, request. Failure to address any portion of an open records request is a violation of the Act. 17-ORD-247; 14-ORD-013.
An agency's "failure to respond to an open records request is tantamount to a denial of the request without specific basis." 15-ORD-176. Where, as here, the agency fails to make a substantive response to either the request or the appeal, we have not hesitated to find a violation of the Act, as the agency bears the burden of proof under KRS 61.880(2)(c). 10-ORD-021; 10-ORD-144. Accordingly, we find that the Commission violated the Open Records Act by failing to respond in any meaningful fashion.
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 proceeding.
Footnotes
Footnotes