TO BE PUBLISHED

95-ORD-19

February 21, 1995

In re: Davy Jones/University of Kentucky

OPEN RECORDS DECISION

Pursuant to KRS 61.880(2)(a) and KRS 61.880(4), Mr. Davy Jones, Professor of Toxicology at the University of Kentucky, challenges the University's actions following the issuance of 94-ORD-108 on September 19, 1994. In 94-ORD-108, this office held that the University's denial of a number of requests for public records submitted by Mr. Jones constituted a partial violation of the Open Records Act. We also affirmed, in part, the University's actions. Neither Mr. Jones nor the University appealed this decision.

Mr. Jones complains, generally, that the University's failure to appeal, or alternatively, release the public records deemed nonexempt in 94-ORD-108, within thirty days of the issuance of that decision, constitutes a separate and appealable violation of the Open Records Act. His eleven-page letter of appeal, dated November 4, 1994, and seven-page supplement, dated December 11, identify at least seventeen new violations arising from the University's actions. Although we do not wish to appear to give short shrift to these alleged violations, we are not empowered to adjudicate this dispute, and therefore do not enumerate them. Relief, if any is forthcoming, lies in the circuit court, and it is to the court that Mr. Jones must look for redress of his grievances.

Pursuant to KRS 61.880(2)(a), the Attorney General is empowered to review a public agency's denial of a request to inspect a public record, at the request of a complaining party, and to issue a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. He may also review an agency's actions if a complaining party believes that the intent of KRS 61.870 to 61.884 is being subverted by the agency short of denial of inspection. KRS 61.880(4). On the day that he renders his decision, the Attorney General is required to mail a copy to the agency, and a copy to the person who requested the record in question. KRS 61.880(2)(c). This is the extent of his authority. The Attorney General is not empowered to reconsider his decision or enforce his decision by the imposition of penalties. Nor is he required to defend his decision if it is appealed in circuit court. KRS 61.880(3). His role is narrowly circumscribed by statute.

KRS 61.880(5)(a) invests a party who is aggrieved by an Attorney General's open records decision with the right to appeal the decision. That statute provides:

A party shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882.

If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision is deemed to have "the force and effect of law and [to] be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained." KRS 61.880(5)(b). The statute is clear on its face.

It is the opinion of this office that the failure of a public agency to release records which have been declared nonexempt in an open records decision within thirty days of the issuance of that decision, or initiate an appeal within the same time, does not constitute a violation of the Open Records Act within the meaning of KRS 61.880(2)(a), or an attempt to subvert the intent of the Act within the meaning of KRS 61.880(4). Such conduct is, instead, addressed at KRS 61.880(5(b). If a public agency continues to withhold records after thirty days have elapsed, and the agency has not appealed the Attorney General's decision, the requester must seek enforcement of the decision in the appropriate circuit court.

We make no finding relative to Mr. Jones's allegation that the University improperly extended the thirty days it is permitted by statute to determine whether it will initiate an appeal or release the disputed records. This is not, in our view, an appropriate matter for adjudication by this office. Further, we decline Mr. Jones's invitation to "formally observe in [our] decision that . . . the University has exhibited an apparent indifference to the instructions of the Attorney General and to its responsibilities in such a situation under the Open Records Law. . . . [and] include . . . some guidance to public agencies on whether repeated open violations of the same kind . . . is [sic] within the realm of evidence that proper authorities are authorized to examine in their determination of whether a violation of KRS 61.991 exists." We trust that the prosecutorial authorities are competent to make this determination if sufficient evidence exists.

In submitting this appeal, Mr. Jones has advanced a novel argument premised on the idea that the University's apparent failure to comply with KRS 61.880(5)(a) constitutes a continuing violation of the Open Records Act which is appealable to the Attorney General. In our view, this is an enforcement issue, and not an appropriate issue for adjudication. It is not for this office, but instead for the courts, to enforce 94-ORD-108, assuming that there remain unresolved issues.

Mr. Jones may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

ABM/res/1471, 1627

Distributed to:

Mr. George DeBin

Official Records Custodian

11 Administration Building

University of Kentucky

Lexington, KY 40506-0032

Mr. Davy Jones

204 Funkhauser Bldg.

University of Kentucky

Lexington, KY 40506