NOT TO BE PUBLISHED

96-ORD-270

December 18, 1996

In re: Royden K. Cullinan/City of Louisville

Open Records Decision

This matter comes to the Attorney General on appeal from the City of Louisville's failure to respond to Mr. Royden K. Cullinan's open records request which he faxed to the city on October 28, 1996. By letter of appeal, dated November 15, 1996, Mr. Cullinan indicates that, as of that date, he had received no response to his request.

On November 19, 1996, we sent a “Notification of Receipt of Open Records Appeal” to the City of Louisville and enclosed a copy of Mr. Cullinan's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, provided this office with a response to the issue raised in this appeal.

Mr. Guagliardo indicates that the faxed request, addressed to Mr. Robert Schwoeppe, Department of Finance & Budget, had been received by Ms. Sara Parks, who, as her usual practice, would have forwarded the request to Mr. Guagliardo for response. However, somehow, through inadvertence, the request did not make its way to Mr. Guagliardo.

In his response, Mr. Guagliardo offers the following factual setting surrounding the issue raised in the instant appeal:

Since October 1, 1996, Mr. Cullinan and his friends and family have made no less than 20 Open Records requests to various departments in the

City, at least eleven of them to Mr. Schwoeppe's office. He and his father, R. Keith, speak frequently to Ms. Parks about the status of their various requests, 99% of which are granted as a matter of course. Royden frequently comes to Ms. Parks' office to pick up his and R. Keith's records. They work for the same company in the same office. Royden has called Ms. Parks in the past. He and his father have talked to her a number of times since October 28 to inquire about the about the status of their various requests (the vast majority of which your office never sees).

In fact, Ms. Parks advises me that her conversations with the Cullinans are so frequent and comprehensive about the status of their various requests, that she would expect them to tell her if a request is late or not answered. They have done so in the past. This time, however, neither Royden nor R. Keith said a thing about the October 28 request, despite having spoken with Ms. Parks numerous times since then. Royden was in her office as recently as November 20 and said nothing about the request. [Emphasis in the original.]

We are asked to determine if the actions of the city violated the Open Records Act in its handling of Mr. Cullinan's request. We conclude that the city's response, although procedurally deficient, did not violate the Act.

The City of Louisville `s response was procedurally deficient to the extent that it failed to comply with the three day deadline for agency response to an open records request, as required by KRS 61.880(1). This procedural violation is mitigated by the fact that the request, through inadvertence, was not directed to Mr. Guagliardo's attention for timely response. The city has indicated to the undersigned that upon discovery that no response to the request had been made, it immediately prepared a response.

Accordingly, we conclude that, under the facts of this case, there was no substantive violation of the Open Records Act. We do note that the Act contemplates a spirit of cooperation between the parties entangled in an open records request. Under the circumstances, as described by Mr. Guagliardo above, particularly with the large number of requests involved, we urge the parties to this appeal to work toward an amiable resolution of their differences and understandings as to which records have or have not been provided prior to bringing an appeal to this office or to the circuit court.

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

1366

Distributed to:

Royden K. Cullinan

1406 Browns Lane

Louisville KY 40207

Paul V. Guagliardo

Senior Attorney

Department of Law

City of Louisville

City Hall

Louisville KY 40202