Monday, April 6, 2009

Attorney general issues open records decisions

The following opinion and open records/meetings decisions were issued by the Office of the Attorney General March 31-April 3:

1. OAG 09-003
In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2009 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Thursday, June 25, 2009, since 90 full days will then have passed after final adjournment on March 26, 2009.

2. 09-OMD-056 (Warren County)
Three employees of Bowling Green Municipal Utilities acting within the scope of their employment were not constituted as a “committee” that was “established, created, and controlled” by a public agency, the Open Meetings Act does not apply.
KRS 61.805(2)(g) does not apply.

3. 09-ORD-057 (Mercer County)
Northpoint Training Center did not violate Open Records Act by not providing copies of policies and procedures to an inmate when the documents did not contain a specific reference to him, as provided in KRS 197.025A(2), or addressed security and control of inmates and facilities, as provided in KRS 197.025(6).

4. 09-ORD-058 (Franklin County)
Education and Workforce Development Cabinet violated KRS 61.880(1) in failing to issue a timely written response to open records request. Cabinet failed to meet its statutory burden of proof relative to invocation of KRS 61.872(6) and 3 of 7 records requests. Cabinet honored two of the requests and properly denied the remaining requests.

5. 09-ORD-059 (Franklin County)
Cabinet for Health and Family Services cannot produce nonexistent records for inspection or copying nor does it have to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.2d 333, 340-341 (2005). In accordance with 09-ORD-022, agency's denial as to six categories of records withheld on the basis of 45 CFR § 2.3, incorporated into the Act by operation of KRS 61.878(1)(k), is affirmed. CHFS properly redacted information from certain documents per KRS 61.878(1)(a) and KRS 620.050(11). With exception of procedural violations, agency complied with the Act.

6. 09-ORD-060 (Franklin County)
The Office of the Governor violated KRS 61.880(1) in failing to respond to three separate requests for records relating to an efficiency study. Records belatedly disclosed to requester related to a spending analysis report, and Governor's Office maintained that no additional responsive records existed because no efficiency study was conducted.

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