NOT TO BE PUBLISHED

96-ORD-152

July 2, 1996

In re: Richard J. Coe/Breckinridge County Board of Elections

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Breckinridge County Board of Elections' response to Mr. Richard J. Coe's open records request to review certain of the Board's records pertaining to the McDaniels Community Building in McDaniels, Kentucky.

In his letter of appeal to this office, Mr. Coe states that on May 28, 1996, a courier hand delivered his request to the Breckinridge County Board of Elections, County Clerk's Office. As of the date of his letter of appeal, June 5, 1996, Mr. Coe states his request has not been answered, either with fulfilled request or denial to see the requested records.

After receipt of the letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Charles Allen Wilson, Breckinridge County Clerk, on behalf of the Board of Elections, provided this office with a response to the issues raised in the appeal. In his response, Mr. Wilson states that Mr. Coe's request was received on May 28, 1996 and he typed a response to it on June 3, 1996. Mr. Wilson further states that he then sent his response to the Breckinridge County Judge's office to review and the letter was mailed to Mr. Coe on June 10, 1996. A copy of the June 3, l996 letter was enclosed with Mr. Wilson's response to this office.

The issue before us is whether the Board of Elections' response was consistent with the Open Records Act. For the reasons which follow, it is the conclusion of this office that the Board's response was procedurally deficient to the extent that it failed to timely respond to Mr. Coe's request, as required by 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, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must include a statement of the specific exception authorizing the withholding of the record, and briefly explain how the exception applies to the record withheld.

In general, a public agency cannot postpone or delay this statutory deadline. The burden on the 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 afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must immediately so notify the requester, and designate a place, time, and date for inspection not to exceed three days from receipt of the request, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. KRS 61.872(5).

In this case, the Board of Elections' response was procedurally deficient to the extent it exceeded the three day deadline. Assuming that the Board could justify this delay, it was nevertheless obligated to immediately notify Mr. Coe, explain the reasons for the delay, and designate the place, time, and earliest date on which the records would be available for inspection. Sending the draft of the June 3, 1996 response to the County Judge's office for review is not a proper justification for failing to timely respond to an open records request as required by the Act. OAG 92-103.

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.

As to the substantive issue, a review of the Board's June 3,1996 letter, ultimately mailed on June 10, 1996, indicates that it either provided Mr. Coe with the information he requested or the requested records did not exist. Accordingly, we conclude that the Board's response, in this regard, was in accord with the Open Records Act.

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

JMR/701

Distributed to:

Richard J. Coe

R. R. #3 Box 126-B

Hardinsburg KY 40143

Charles A. Wilson

County Clerk

Breckinridge County Courthouse

P. O. Box 538

Hardinsburg KY 40143