March 11, 1993









IN RE: Mark F. Sommer/Kentucky Revenue Cabinet






This matter comes to the Attorney General on appeal from the actions of the Kentucky Revenue Cabinet relative to Mr. Mark Sommer's requests to inspect records in the Cabinet's custody. Those records are identified as "research performed by, recommendations made, and conclusions reached by the law firm Wyatt, Tarrant & Combs surrounding a 1992 review of the constitutionality of Kentucky's Enterprise Zone tax struc- ture." Mr. Sommer indicates that his first request was submitted to Kim Burse, Secretary of the Kentucky Revenue Cabinet, on December 10, 1992. In a letter dated January 12, 1993, to Alex W. Rose, Commissioner, Mr. Sommer renewed his request. Neither Secretary Burse nor Commissioner Rose formally responded to his requests within three business days as required by KRS 61.880(1). This appeal followed.


We are asked to determine if the Kentucky Revenue Cabinet violated the Open Records Act by failing to respond to Mr. Sommer's requests. For the reasons set forth below, we conclude that the Cabinet's actions constitute a violation of the Act.


KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. 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 action.


Mr. Sommer first submitted his Open Records request on December 10, 1992. The Revenue Cabinet failed to formally respond to his request until March 4, 1993. On March 4, Commissioner Rose advised Mr. Sommer that the record he sought was not in the Cabinet's custody, and that his request had been forwarded to Ms. Sara Bell in the Economic Development Cabinet. Nearly three months elapsed between the date of Mr. Sommer's initial request and Commissioner Rose's response.


The Revenue Cabinet violated the Open Records Act to the extent that it failed to advise Mr. Sommer, in writing, and within three working days of his request, whether it intended to honor his request. If, as Commissioner Rose's March 4 letter indicates, the Cabinet did not have custody or control of the records requested, it should have promptly notified Mr. Sommer, and furnished the name and location of the custodian of the records pursuant to KRS 61.872(4).


The Revenue Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.


























Distributed to:


Ms. Kim Burse, Secretary

Kentucky Revenue Cabinet

Room 403, Capitol Annex Building

Frankfort, Kentucky 40601



Mr. Alex W. Rose

Commissioner, Department of

Administrative Services

Kentucky Revenue Cabinet

Room 404, Capitol Annex Building

Frankfort, Kentucky 40601



Hon. Mark F. Sommer

Greenebaum, Doll & McDonald

3300 First National Tower

Louisville, KY 40202-3197



Ms. Sara Bell

Economic Development Cabinet

Capital Plaza Tower

500 Mero Street

Frankfort, Kentucky 40601