March 8, 1994
IN RE: Royden K. Cullinan/City of Louisville
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Royden K. Cullinan to the City of Louisville on January 4, 1994. Mr. Cullinan requested access to records of various City expenditures over a period of six to nine fiscal years. Mr. Thomas Lukins, Assistant Director of Law, responded to Mr. Cullinan's request on behalf of the City on January 10, 1994, advising him that the City was "evaluating" his request, and that he could expect "a more formal response by the end of the week." Having received no "formal response" to his request, Mr. Cullinan submitted this appeal to the Attorney General on February 15, 1994.
The issues presented in this open records appeal are not novel. Indeed, in 93-ORD-134, this Office dealt with identical issues in the context of an appeal involving the same parties. There, as here, the question presented was whether the City of Louisville's actions relative to Mr. Cullinan's request for public records constituted a violation of the Open Records Law. There, as here, we concluded that they do.
We will not burden the parties with a recitation of the procedural requirements of the Open Records Law since each is well versed in that Law. Suffice it to say that the City must comply with KRS 61.880(1) by notifying Mr. Cullinan in writing, and within three business days, whether it intends to honor his requests, and afford him timely access to all nonexempt public records. To the extent that it is dispositive of the issues presented in this appeal, we hereby incorporate 93-ORD-134. The City is directed to immediately respond to Mr. Cullinan's request, and to advise him when all nonexempt records identified in his request will be available for inspection.
It should be noted that this Office is not empowered to impose penalties or otherwise enforce its decisions. Nor are we inclined to retread familiar ground. KRS 61.880(5)(b) creates a mechanism by which a prevailing party may enforce an Attorney General's decision after the thirty day time limit has expired. That statute provides:
If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.
If a public agency fails to file an appeal of a decision within thirty days, but refuses to comply with the terms of that decision, a prevailing party need only petition the circuit court for enforcement of the decision. These proceedings are not equivalent to the de novo appeal provided for at KRS 61.882. Since the unappealed decision has the force and effect of law, the issues raised are not relitigated. Instead, the court should enforce the decision as law. Mr. Cullinan may wish to consider this alternative in view of this Office's limited role in enforcing its decisions.
Assuming the facts to have been fairly and accurately presented by Mr. Cullinan, we conclude that the City violated the Open Records Law in its January 10, 1994, response to him, and subsequent failure to afford him timely access to all nonexempt records identified in his request. The City should take immediate action to correct this violation.
The City of Louisville 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 as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Thomas Lukins
Assistant Director of Law
City of Louisville
Department of Law
Room 200, City Hall
Louisville, KY 40202-2771
Mr. Royden K. Cullinan
220 West Main Street, 22nd Floor
Louisville, KY 40202