NOT TO BE PUBLISHED
June 2, 1993
IN RE: Jessica Shuler/Kentucky State Police, Post 7
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police, Post 7, relative to Ms. Jessica Shuler's request to inspect the files pertaining to Winchester Towing/24 Hour Mechanic which are in the Kentucky State Police's custody. Ms. Shuler indicates that Captain Larry Lewis verbally denied her request, explaining that those records are among Lt. Piercy's personal files, and are therefore unavailable for inspection. Captain Lewis further advised her that the file is "inactive." Ms. Shuler subsequently asked Captain Lewis if he intended to issue a written response, and he responded in the negative.
We are asked to determine if the Kentucky State Police violated the Open Records Act by failing to respond to Ms. Shuler's request in writing and within three business days. For the reasons set forth below, and assuming that Ms. Shuler's letter contains a fair and accurate recitation of the facts, we conclude that Kentucky State Police'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.
Ms. Shuler made her request on May 12, 1993. To date, the Kentucky State Police have failed to respond to her request in writing. Well over a week has elapsed since the date of her initial request.
The Kentucky State Police violated the Open Records Act to the extent that it failed to notify Ms. Shuler in writing, within three business days, that it did not intend to honor her request, and to include a statement of the specific exception authorizing the withholding of the records along with a brief explanation of how the exception applies to those records. The Kentucky State Police should immediately issue a written response to Ms. Shuler's request. If the State Police continue to argue that the file is "inactive," the custodian must cite the exception which he believes authorizes the withholding of "inactive files," and explain why the requested record is being treated as inactive. In other words, the response must conform to KRS 61.880(1).
The Kentucky State Police may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Capt. Larry Lewis
Kentucky State Police Post 7
699 Eastern Bypass
Richmond, KY 40475
Ms. Jessica Shuler
P. O. Box 5132
Richmond, KY 40476