NOT TO BE PUBLISHED

96-ORD-81

April 16, 1996

In re: Franklin France/Clay County Jail

OPEN RECORDS DECISION

This matter is before the Attorney General on appeal from Franklin France's request to inspect certain records in the custody of the Clay County Jail. On December 4, 1995, Mr. France requested to inspect the following records:

Any records stating that I was detained in the Clay County Jail from September 14, 1958, thru June 15, 1959, any records which pertain to me from my date of birth to the present date, or any records pertaining to circuit court indictments 58-4522, 72-5989 or 88-CR-098.

On January 2, 1996, this office sent a notification of open records appeal to Mr. Charles Marcum, Clay County Jailer, informing him that an appeal had been filed by Mr. France.

We are asked to determine if the Clay County Jail violated the Open Records Act by failing to respond to Mr. France's request for records. For the reasons set forth below, it is the conclusion of this office that the actions of the Clay County Jail were both procedurally and substantively inconsistent with the Open Records Act.

KRS 61.880(1) 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.

On January 18, 1996, the undersigned again contacted Charles Marcum, reminding him that an open records appeal had been filed by Mr. France. A copy of Mr. France's appeal and original request were attached. In the January 18 letter, Mr. Marcum was directed to respond to Mr. France's request within three business days, and to send a copy of his response to this office. As of April 1, 1996, some fifty (50) business days later, this office had not received a response from Mr. Marcum. This failure to respond constitutes a violation of KRS 61.880(1).

Having received no response from Mr. Marcum, this office has no alternative but to order disclosure of all records in Mr. Marcum's custody which satisfy Mr. France's request.

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

A. B. CHANDLER III

ATTORNEY GENERAL

AMYE L. BENSENHAVER

ASSISTANT ATTORNEY GENERAL

TMG/tg

Distributed to:

Franklin France, #52799

Eastern Kentucky Correctional Complex

P. O. Box 636, Dorm 1BL4

West Liberty KY 41472

Charles Marcum

Clay County Jailer

115 Court Street

Manchester KY 40962