23-ORD-274
October 18, 2023
In re: J. Brooken Smith/Louisville/Jefferson County Metro Government
Summary: The Louisville/Jefferson County Metro Government
(“Metro”) violated the Open Records Act (“the Act”) when it failed to
issue a response to a request within five business days of receiving it.
Open Records Decision
On August 28, 2023, J. Brooken Smith (“Appellant”) submitted a request to
Metro through its online portal to inspect five categories of records in its possession
related to funds obtained and distributed pursuant to the American Rescue Plan.
Metro’s online portal indicated the Appellant’s request was received on August 28,
2023. On September 20, 2023, having received no further response from Metro, the
Appellant initiated this appeal.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . 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 five (5) day period, of its decision.” Here, Metro
received the Appellant’s original request on August 28, 2023, but did not respond to
it until after this appeal was initiated. Thus, Metro violated the Act.1
1
After the appeal was initiated, Metro provided responsive records to the Appellant and asked the
Office to consider the appeal moot. See 40 KAR 1:030 § 6 (“If the requested documents are made
available to the complaining party after a complaint is made, the Attorney General shall decline to
issue a decision in the matter.”). However, the Appellant objects to the appeal being considered moot
because he specifically sought the Office’s review under KRS 61.800(4) and claimed Metro’s failure to
respond within five business days subverted the Act by causing “delay past the five (5) day period
described in” KRS 61.880(1). Accordingly, the appeal is not moot. See, e.g., 23-ORD-007.A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#412
Distributed to:
J. Brooken Smith
Alice Lyon
Nicole Pang
Natalie S. Johnson
Annale Taylor