January 28, 1994

IN RE: Virginia Luttrell/Office of Pulaski County Judge/Executive Darrell Beshears


This appeal originated in a request for public records submitted by Ms. Virginia Luttrell to Pulaski County Judge/Executive Darrell Beshears on December 17, 1993. [1] On December 18, Ms. Luttrell submitted the same request to Mr. Phillip McClendon, 1st District Magistrate, requesting access to various records relating to the use of public road funds in Pulaski County. Ms. Luttrell indicates that both of her requests were ignored. She subsequently contacted Mr. Fred Neikirk, Pulaski County Attorney, to ascertain the status of her requests. After speaking with Judge Beshears and Magistrate McClendon, Mr. Neikirk advised her that neither official intended to respond.

The question presented in this appeal is whether the former county judge and current first district magistrate violated the Open Records Act. For the reasons set forth below, we conclude that these officials committed a procedural violation of the Act.

KRS 61.880(1) sets forth procedural guidelines for public 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. Luttrell first submitted her request for public records on December 17, 1993. To date, Judge Beshears and Magistrate McClendon have failed to respond, and have stated that they will not respond. Well over three business days have elapsed since the date of Ms. Luttrell's initial request to Judge Beshears.

Assuming the facts to have been fairly and accurately presented by Ms. Luttrell, we conclude that these officials violated the Open Records Act to the extent that they failed to advise her in writing, and within three business days of her request, why they would not honor her request. A written response should have been issued by their offices pursuant to KRS 61.880(1).

We have been advised by Mr. Neikirk that Judge Beshears and Magistrate McClendon orally communicated their position relative to Ms. Luttrell's request to her. She was advised that because the records were available in the county clerk's office, it would be unreasonably burdensome to require them to reproduce the records for them. This response was neither procedurally nor substantively correct under the Open Records Act.

Judge Beshears and Magistrate McClendon may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named in that action, or in any subsequent proceedings.






Distributed to:

Hon. Darrell Beshears

2040 Prather Drive

Nancy, KY 42544

Hon. Phillip McClendon

First District Magistrate

H.C. 66, Box 340

Nancy, KY 42544

Hon. Fred Neikirk

Pulaski County Attorney

P. O. Box 5

Somerset, KY 42501

Hon. Louie Floyd

Pulaski County Judge/Executive

Pulaski County Courthouse

Somerset, KY 42501

Ms. Virginia Luttrell

4068 West Farm Road

Nancy, KY 42544


[1]Judge Beshears' term of office expired on January 1, 1994, and he was succeeded by the Honorable Louie Floyd. Judge Floyd's office has apparently not been served with a request for these records, and is in no way implicated in the actions challenged in this appeal.