October 10, 1996

In re: Raymond Baird/Daviess County Attorney

Open Records Decision

This matter comes to the Attorney General on appeal from the actions of the Office of the Daviess County Attorney relative to the open records request of Mr. Raymond Baird to inspect two complaints concerning the alleged activity of Raymond and Hattie Baird.

In his open records request, Mr. Baird indicates that on August 26, 1996, he made two telephone calls to the County Attorney's office asking for copies of the criminal complaints filed against him and his sister. On both occasions, he was informed that he could not have them. On the same date, he submitted a three page, handwritten request to inspect the complaints. The letter, written primarily in response to an August 23, 1996 letter from the County Attorney regarding the Bairds's conduct, makes no affirmative statement that it is an open records request. In his letter of appeal, Mr. Baird states that he received no response from the County Attorney's office to this open records request.

After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Robert M. Kirtley, Daviess County Attorney, provided this office with a response to the issues raised in this appeal. In this response, Mr. Kirtley states that in August his office received two complaints concerning alleged criminal activity of Raymond and Hattie Baird. He further states that it is standard office policy to have the complaining party fill out an internal office complaint. He indicates that the two matters are both still pending and are therefore not subject to inspection under the open records law.

We are asked to determined if the actions of the Office of the Daviess County Attorney were in compliance with the Open Records Act. For the reasons which follow, we conclude that the failure of that office to make a written response to Mr. Baird's request was inconsistent with 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 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 agency action.

Mr. Baird's request was submitted on August 26, 1996. The Daviess County Attorney's Office failed to respond to his request in writing. The Open Records Act does not require an affirmative statement that the request is an “open records request.” However, it remains incumbent upon the public agency to make a determination whether the request is one made under the Open Records Act. Although Mr. Baird's letter addressed other matters and was not couched in terms of an open records request, it nevertheless was a request to inspect public records. Failure of a public agency to respond to an open records request is a procedural violation of KRS 61.880(1).

The 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, p.5. Although KRS 61.878(1)(h) permits the County Attorney to withhold “information compiled and maintained . . . [by his office] pertaining to criminal investigations or criminal litigation . . . ,” it does not relieve him of his duty to respond to requests submitted under the Open Records Act. 95-ORD-142. Accordingly, the County Attorney's Office should provide Mr. Baird with a written response to his open records request within three working days after receipt of this decision.

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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Raymond Baird

3830 Shelly Drive

Owensboro KY 42303

Robert M. Kirtley

Daviess County Attorney

100 East Second Street

Judicial Center - Room 304

Owensboro KY 42303