Zoning Commission miscontrusted statute that allows request even if there is pending litigation

The Zoning Commission of Mercer County violated the Open Records Act by not turning over copies of requested records in a timely manner.

On Aug. 25, 2016, Attorney General Andy Beshear issued the opinion, In re: Jeffery Schumacher/Mercer County Joint Planning and Zoning Commission, 16-ORD-176.

Schumacher on June 8 requested records involving applications of building permits or variances in the past five years, not including ones given to him in a previous request.

The day after the request, the commission asked for a three-week period to compile and go through over 10,000 records that likely would be applicable to the request.

Not having received the records by July 11, Schumacher contacted the commission about the delay. It replied the following day, stating that because of a pending appeal by Schumacher’s client against another agency of the county, the correspondence was being directed to the Planning Commission attorney, David Patrick.

Schumacher appealed to Beshear’s office.

In the commission’s response, Patrick argued the entire request is exempt under KRS 61.878(1), because Schumacher represents a client in a court appeal against a Mercer County agency, and the request was related to that case.

Beshear ruled the commission misread that statute. The request was not barred through the Open Records process because the records could be obtained through the discovery process of litigation.

The attorney general reiterated that litigation and the discovery process do not relieve a public agency of its duties under the Open Records Act. The law allows the agency to deny an Open Records request only if the documents would be protected from discovery as well.

The attorney general also found the agency did not comply with the timely response of the records, as it did not fulfill the requested extension of three weeks, which constituted a violation of the Open Record Act.