NOT TO BE PUBLISHED
July 29, 1994
IN RE: Jerry Mathenia/Hopkinsville
Department of Public Advocacy
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Jerry Mathenia to the Hopkinsville Department of Public Advocacy on May 17, 1994. Mr. Mathenia received no response to his request. On June 27, he initiated this appeal with the Attorney General, requesting that this Office review the Department's actions. On the same date, this Office issued a "Notification of Receipt of Open Records Appeal" to the records custodian of the Hopkinsville Department of Public Advocacy, and attached a copy of Mr. Mathenia's appeal. We provided the custodian with this Office's mailing address to facilitate his or her response to Mr. Mathenia's appeal. Some fifteen business days having elapsed since the issuance of notification, this Office has received no additional information from the Hopkinsville Department of Public Advocacy.
We are asked to determine if the Hopkinsville Department of Public Advocacy violated the Open Records Act in its handling of Mr. Mathenia's request. For the reasons set forth below, we conclude that the Department's failure to respond to the request constitutes a procedural 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 withhold- ing 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 agency action.
The Hopkinsville Department of Public Advocacy violated the Open Records Act by failing to respond to Mr. Mathenia's request in writing, and within three business days. Assuming, for the sake of argument, that the Department never received Mr. Mathenia's original request, it was put on notice that a request had been submitted, and an appeal taken, when this Office issued its notification of appeal. The Department is directed to immediately respond to Mr. Mathenia's request. If the Department denies all or any portion of his request, it must identify the record withheld, cite the exception upon which it relies in denying inspection, and briefly explain how the exception applies to the record withheld.
The Hopkinsville Department of Public Advocacy may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although he should be notified of any actions in circuit court, the Attorney General should not be named as a party in those proceedings, or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hopkinsville Department of Public Advocacy
South Main Street
Hopkinsville, Kentucky 42240
Jerry D. Mathenia
Western Kentucky Correctional Complex
P. O. Box 5000
Eddyville, Kentucky 42038-5000