NOT TO BE PUBLISHED

95-ORD-26

February 24, 1995

Re: Tony S. Colwell/Kentucky Turnpike Water District

OPEN RECORDS DECISION

This comes to the Attorney General on appeal of the Kentucky Turnpike Water District's (hereafter "Water District") failure to respond to Tony S. Colwell's open records request of November 11, 1994.

KRS 61.880(4) provides that if a person feels the intent of the Open Records Act is being subverted by an agency short of denial of inspection, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.

By letter of November 18, 1994, Mr. Colwell has appealed to this office for a determination as to whether the Water District's response was consistent with the Open Records Act. In that letter, Mr. Colwell set forth the following circumstances:

I submitted a letter to the Kentucky Turnpike Water District (K.T.W.D.) on November 11, 1994 for records under The Open Records Act. (see enclosed letter). On November 16, 1994, having received no reply, I went in person to the K.T.W.D. office and K.T.W.D. Attorney John Wooldridge office, no records were released to me. Again on November 17, 1994, I called K.T.W.D. (502) 955-9281 at 9:30 a.m. the person in charge of records refused to release any records until the board approved release on them. Please help me as soon as possible time is running out and I feel I am getting stone walled again.

The Open Records Act contains specific guidelines for an agency's response to an open records request. KRS 61.880(1) provides in pertinent part:

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 action.

The Water District violated the Open Records Act to the extent that it failed to respond to Mr. Colwell's request in writing with 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.

In his appeal letter, Mr. Colwell states that he called the Water District's custodian of records who advised him that she could not release any records until the board approved release of them. This response did not set forth the specific exception which authorized the Water District to withhold the records and how the exception applied. The Water District therefore did not comply with the procedural requirements of the Open Records Act.

Subsequent correspondence between Mr. Colwell and the Water District has been forwarded to this office by each party. These letters indicate that the Water District has made and continues to try and make requested records available for Mr. Colwell's inspection. Accordingly, it appears that the Water District has acted in substantial compliance with the Open Records Law and its actions mitigate the procedurally deficient response of the agency. We emphasize, however, that the Water District is expected to comply with the procedural requirements of the Act. It would be well advised to review the provisions of KRS 61.880(1) to ensure future compliance.

Mr. Colwell may challenge this decision 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.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/1516

Distributed to:

Mr. John W. Wooldridge

P.O. Box 670

Shepherdsville, KY 40165

Mr. Tony S. Colwell

576 Deatsville Road

Shepherdsville, KY 40165