NOT TO BE PUBLISHED
September 28, 1994
In re: James M. Ellis/Triple S Planning Commission
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. James M. Ellis, President of Shelby County Organized for Preservation and Enhancement, Inc. (SCOPE), to the Triple S Planning Commission on August 15, 1994. Mr. Ellis requested access to:
(1) A copy of the agendas of all meetings, excepting the Commission's regular monthly meetings, held by the Commission from January 1, 1994 to date,
(2) A copy of the minutes of all meetings, excepting the Commission's regular monthly meetings, held by the Commission from January 1, 1994 to date,
(3) A copy of the 'rules and regulations' adopted by the Commission pursuant to KRS 61.876(1) which the public can use to inspect public records of the Commission. Public records include the audio tapes of meetings of the Commission [KRS 61.870(2)], and
(4) The specific identification of the 'conspicuous place' locations which the Commission uses and will use in the future to post all notices of special meetings [KRS 61.823(4)(b)]. Please indicate the times that the notices will be available for viewing by the public.
Having received no written response to his request, Mr. Ellis sent a follow-up letter to the Planning Commission on August 26, requesting that the Commission give immediate attention to his request. On the same day, Mr. Ellis initiated this appeal with the Attorney General.
The question presented in this open records appeal is whether the Planning Commission violated the Act in its handling of Mr. Ellis's request. For the reasons set forth below, we conclude that the Commission's failure to respond to Mr. Ellis's request in writing, and within three business days, constituted a procedural violation of the Open Records Act.
KRS 61.880(1) 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. Ellis's request was submitted on August 15. To date, the Commission has failed to advise him in writing whether it will comply with his request. This failure to respond is a viola- tion of KRS 61.880(1). The Commission is directed to immedi- ately respond to Mr. Ellis's request.
On August 29, 1994, this Office notified the Commission that an appeal had been filed by Mr. Ellis. On September 5, we contacted the Commission by telephone, and spoke with Ms. Joanne Bemiss, Zoning Enforcement Officer. We reminded Ms. Bemiss of the Commission's statutory duty to respond under the Act. She referred us to the Commission's attorney, Mr. Vic Brizendine, whom we subsequently contacted by telephone. Mr. Brizendine stated that he had prepared a letter for this Office relative to Mr. Ellis's request. In that letter Mr. Brizendine responded to each of Mr. Ellis's requests. Mr. Brizendine's response should have been directed to Mr. Ellis, and issued within three business days of receipt of his request. We urge the Commission to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
The Triple S Planning Commission may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but must not be named as a party in that action, or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. William Tucker, Chairman
Triple S Planning Commission
501 Main Street
Shelbyville, KY 40065
Hon. Vic Brizendine III
14307 Oak Bluff Court
Louisville, KY 40245
Mr. James M. Ellis
734 Booker Pike
Shelbyville, KY 40065