May 17, 1996

In re: Gerald T. Kemper/Owen County Industrial Authority


This matter comes to the Attorney General as an appeal by Gerald T. Kemper, Esq., in connection with his request to the Owen County Industrial Authority for access to various documents, most of which pertain to a particular promissory note.

Mr. Kemper's request to the Industrial Authority was dated November 16, 1995, and the only communication from the Industrial Authority to anyone about anything relevant to the request was a letter, dated November 20, 1995, to the Attorney General from Frank K. Downing, Chairman of the Industrial Authority. In addition to asking several questions of the Attorney General, Mr. Downing seemed to question Mr. Kemper's right to request documents from the Industrial Authority as he said Mr. Kemper has no business with regard to the Authority.

Mr. Kemper's letter of appeal was received by the Attorney General's Office on November 27, 1995.

We presume that the Owen County Industrial Authority is a local industrial development authority organized by the county pursuant to KRS 154.50-301 to KRS 154.50-346. If it is, then it is a “public agency” and subject to the terms and provisions of the Open Records Act. See, among other provisions, KRS 61.870(1)(g).

KRS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request for access to documents made under the Open Records Act. That statute provides in part as follows:

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.

This office has stated on numerous occasions that the procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of a request to inspect public documents. Any public agency has the duty to respond to the request in writing within the statutorily mandated time frame. The agency has the burden of justifying the withholding of a record by references to the appropriate exception to public inspection and by briefly explaining how that exception applies to the particular document withheld. See 95-ORD-159 and 95-ORD-114, copies of which are enclosed.

Finally, a public agency cannot postpone or even delay its statutorily required response to a requesting party by contacting the Attorney General for help and guidance in handling a particular request. We said in 95-ORD-80, copy enclosed, that withholding disclosure of public records until a public agency secures an opinion from the Attorney General is not a valid or statutorily recognized exception under the Open Records Act. In view of its quasi-judicial function in the resolution of disputes under the Open Records Act the Attorney General's Office cannot advise a public agency how to handle a particular request for access to public documents.

It is, therefore, the decision of the Attorney General that the public agency failed to respond to the request for access to documents as required by KRS 61.880(1). The public agency's response is both procedurally and substantively deficient, the documents requested were thus improperly withheld, and this office has no alternative but to direct the immediate release of the requested documents to the requesting party.

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 shall be notified of any action filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.






Copies of this decision

have been mailed to:

Gerald T. Kemper, Esq.

109 North Thomas Street

Owenton, Kentucky 40359

Frank K. Downing, Chairman

Owen County Industrial Authority

P.O. Box 1A

510 South Main Street

Owenton, Kentucky 40359