NOT PUBLISHED 

94-ORD-39

March 16, 1994

IN RE: Charles C. Simms, III/Frankfort Fire Marshall

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Mr. Charles C. Simms, III, to the Frankfort Fire Marshall, Mr. Charles Wiley, on February 18, 1994. Mr. Simms requested access to an inspection report on a 1989 Southridge Mobile Home, VIN number 2644AB, conducted by a Mr. Mattingly. Mr. Simms relates that in a telephone conversation on February 24, Mr. Wiley indicated that he would release the records to Mr. Simms if he could locate them. According to Mr. Wiley, the records were stored in another location. Mr. Wiley advised Mr. Simms that he would contact him during the week of February 28, but Mr. Simms heard nothing more.

In his letter of appeal to this Office, Mr. Simms argues that the fact that the records may be located in another building is not "reasonable grounds for the failure of Mr. Wiley to expeditiously fulfill [his] request." He urges this Office to issue a decision consistent with this view.

We are asked to determine if the Frankfort Fire Marshall violated the Open Records Act by failing to afford Mr. Simms timely access to the requested records. For the reasons set forth below, and assuming the facts to have been fairly and accurately presented by Mr. Simms, we conclude that the Fire Marshall violated the Act.

We begin by noting that 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 that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.

Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency attempts to locate the requested records. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.

It is the opinion of this Office that the Frankfort Fire Marshall failed to provide timely access to the records identified in Mr. Simms' requests. KRS 61.872(5) provides:

Mr. Simms' open records request was submitted on February 18, 1994. He spoke with the Fire Marshall on February 24, and received assurances that he would be notified of Mr. Wiley's decision no later than February 28. He has received no further word on the status of his request. Well over three business days has elapsed since Mr. Simms submitted his initial request.

The Frankfort Fire Marshall erred in failing to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200;

OAG 92-35. Although Mr. Wiley offered assurances that he would attempt to locate the records, he did not designate the place, time and earliest date on which the records would be available for inspection. We believe that a delay of this duration is inconsistent with the Open Records Act. The Frankfort Fire Marshall is directed to immediately arrange for Mr. Simms to inspect the report identified in his open records request.

The Frankfort Fire Marshall 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/278

Distributed to:

Mr. Charles Wiley

Frankfort Fire Marshall

1047 U.S. 127 South

Frankfort, KY 40601

Hon. Charles C. Simms, III

McBrayer, McGinnis, Leslie & Kirkland

300 State National Bank Building

P. O. Box 1100

Frankfort, KY 40602-1100

Mr. Charles Wiley

Frankfort Fire Marshall

1047 U.S. 127 South

Frankfort, KY 40601

Hon. Charles C. Simms, III

McBrayer, McGinnis, Leslie & Kirkland

300 State National Bank Building

P. O. Box 1100

Frankfort, KY 40602-1100