July 28, 1995

In re: Dick Moore/Owensboro-Daviess County Hospital


This matter comes to the Attorney General on appeal by Mr. Dick Moore in connection with his attempt to secure a document from the Owensboro-Daviess County Hospital ("Hospital").

In his letter of appeal, Mr. Moore states that on April 27, 1995, he faxed an open records request to the hospital to see a copy of the letter received by it from the U.S. Department of Justice asking the hospital for more data. In his request letter to the hospital, Mr. Moore further identified the letter from the Department of Justice as the one referred to in an April 27, 1995 article in the Owensboro Messenger-Inquirer newspaper.

In his letter of appeal, Mr. Moore states he has received no written response to his open records request from the hospital. He points out that he spoke with a Mr. Newman and Ms. Joy Campbell, Custodian of Records, Owensboro-Daviess County Hospital. Both informed him that the hospital did not have the letter, the hospital's attorney had it.

For the reasons which follow, we conclude that the hospital's failure to respond to Mr. Moore's open records request in writing constitutes a violation of the Open Records Act.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of KRS 61.880 requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requester within three working days of receipt of the request and indicate whether the request will be granted. If the public agency denies all or any portion of the request, the written response must include a statement of the specific exception authorizing the withholding and a brief explanation of how the exception applies to the record withheld.

The hospital violated the Open Records Act by failing to respond to Mr. Moore's request in writing within three working days or, in the alternative, to release a copy of the letter he requested.

On May 10, 1995, this office notified the hospital that Mr. Moore had initiated an open records appeal in this matter. On that date, we sent the hospital a "Notification of Extension of Time for Issuance of Attorney General's Decision in Open Records Appeal" and enclosed a copy of Mr. Moore's letter of appeal. The hospital made no response to Mr. Moore's letter of appeal or otherwise refuted the facts presented therein. We therefore assume that the letter of appeal sets forth an accurate statement of the facts.

Mr. Moore states that he was informed by the hospital's official custodian of its public records that the hospital did not have the letter from the Department of Justice, the hospital's attorney had it. This response was deficient for two reasons. First, the response was not in writing as required by KRS 61.880(1). Second, the hospital cannot circumvent the requirements of the Open Records Act by stating its attorney has the requested document.

The attorney may have possession of the document but does so in his capacity as counsel for the hospital. This does not negate the requirement that the public agency must respond to an open records request in writing as required by KRS 61.880(1). There may very well be a valid basis for withholding disclosure of the letter. However, the Open Records Act re- quires that the basis for withholding disclosure be set forth in the agency's written response to the request to inspect the document. KRS 61.880(1).

Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.

A public agency's denial of an open records request must be articulated in terms of KRS 61.880(1). The hospital was afforded two opportunities to justify its withholding of the requested record, at its initial denial of Mr. Moore's request and by filing a response or documentation with this office after having received notice and a copy of Mr. Moore's letter of appeal. It failed to do so.

Accordingly, absent any response from the agency to support its withholding of the record, we are left with no alternative but to direct the release of the letter to Mr. Moore. This is not to say the hospital could not properly withhold the letter upon sufficient proof that the document fell within an exception which authorized nondisclosure. Our decision is limited to the facts presented in this appeal and turns on the hospital's failure to sustain its burden of proof to justify the withholding of a public record.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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.






Distributed to:

Ms. Joy Campbell, Director

Marketing and Public Relations

Owensboro-Daviess County Hospital

811 East Parrish Avenue

Owensboro, KY 42303

Mr. Dick Moore

General Agent

Midland National Life Insurance Company

2722 Bittel Road

Owensboro, KY 42301