NOT TO BE PUBLISHED

96-ORD-257

November 27, 1996

In re: Steve L. Monroe/Warren County Attorney's Office

Open Records Decision

This matter comes to the Attorney General on appeal from the action of the Warren County Attorney's Office to the September 16, 1996 open records request of Mr. Steve L. Monroe for copies of certain records from that office.

In his letter of appeal to this office, dated October 23, 1996, Mr. Monroe states that, as of that date, he had received no response to his open records request.

On October 29, 1996, we sent a “Notification of Receipt of Open Records Appeal” and enclosed a copy of Mr. Monroe's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the County Attorney's Office provided this office with a response to the issue raised in the appeal. In that response, Ms. Amy Hale Milliken, Warren County Attorney's Office, states that the Warren County Attorney did not respond because the request, addressed to her, was never received by him and, thus, he did not respond.

For the reasons which follow, we conclude that the action of the County Attorney's Office in response to Mr. Monroe's request was inconsistent with the Open Records Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute, in part, 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.

The failure of the County Attorney's Office to respond in writing, and within three business days, to Mr. Monroe's request was procedurally deficient and in violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.

The response to the letter of appeal indicates that Mr. Monroe's request was received by the County Attorney's Office. KRS 61.872(4) directs:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

It does not avail a public agency to respond that the request was submitted to the the wrong person or was not received by the person to whom the request was addressed. KRS 61.872(4) compels a person other than the custodian to whom a request for records is directed to notify the requester and furnish the name and location of the custodian within this three day period.

Accordingly, the Warren County Attorney's Office is directed to promptly respond to Mr. Monroe's request in writing and promptly release the records or if the request is denied, in whole or in part, the response should 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. KRS 61.880(1).

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 KRS61.880(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

1298

Distributed to:

Steve L. Monroe

Bell County Forestry Camp

Route 2, Box 75

Pineville KY 40977

Amy Milliken

Assistant County Attorney

Warren County Attorney's Office

923 College Street

Bowling Green KY 42101