23-ORD-039
February 20, 2024
In re: Matthew DeMarcus/City of Olive Hill
Summary: The City of Olive Hill (“the City”) violated the Open Records
Act (“the Act”) when it failed to respond to a request for records within
five business days.
Open Records Decision
On December 29, 2023, Matthew DeMarcus (“Appellant”) emailed a request to
the City Clerk to inspect “[a]ll contracts, agreements, communications, recordings,
emails, letters, documents, exhibits, plans, drawings, invoices, statements, work
orders and papers entered or exchanged by the [City] with Trane Technologies or
related entities” related to activities conducted at two specific locations. After
receiving an automatic reply stating the City Clerk was on indefinite medical leave,
the Appellant sent a copy of the request to the Assistant City Clerk on January 2,
2024. On January 4, 2024, the Assistant City Clerk advised the Appellant she had
forwarded the request to the City Attorney “to get advised on this.” Having received
no further response to his request by January 30, 2024, the Appellant initiated this
appeal.
On appeal, the City admits it “did not respond to the formal request” for records
but states the Assistant City Clerk “is a part-time employee tasked with performing
her own job duties as well as covering for” the City Clerk in her absence, so “[a]ny
delay in providing documents is a result [of] diminished manpower.” The City
indicates it will issue a response and is communicating with the Appellant regarding
inspection of the requested records.
Under KRS 61.880(1), a public agency must decide within five business days
whether to grant a request or deny it, and notify the requester in writing of its
decision. This time may be extended under KRS 61.872(5) when records are “in active
use, in storage or not otherwise available” if the agency gives “a detailed explanation
of the cause . . . for further delay and the place, time, and earliest date on which the
public record will be available for inspection.” To invoke that provision, however, theagency must “immediately notify the applicant.” Id. Here, the City has not invoked
KRS 61.872(5), nor has it otherwise responded to the Appellant’s December 29
request. Further, concerns regarding staff workload are an insufficient justification
for delay in responding to a request under the Act. See, e.g., 22-ORD-167. A public
agency must “make proper provision for the uninterrupted processing of open records
requests” by having “an individual available to timely process” those requests. 04-
ORD-008. The fact that the acting custodian of records has other important duties
does not affect the City’s obligations under the Act. See, e.g., 17-ORD-128.
Accordingly, the City violated the Act when it failed to respond to the Appellant’s
request within five business days.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#37
Distributed to:
Matthew B. DeMarcus, Esq.
Derrick E. Willis, Esq.
Hon. Jerry Callihan
Ms. Jackie Logan