Tuesday, November 8, 2016

Mockingbird Valley subverted intent of Act by failure to adopt required rules, regulations

A city subverted the intent of the Open Records Act by failing to adopt rules and regulations as required by statute.

On Oct. 6, 2016, Attorney General Andy Beshear issued an opinion in the matter of In re: R. Keith Cullinan/City of Mockingbird Valley, 16-ORD-217.

R. Keith Cullinan, an attorney, requested records relating to the sixth-class Jefferson County city’s open record process on Aug. 25.

The next day the city replied to Cullinan. The letter said that the city does not maintain records responsive to the request. The appeal was initiated on Sept. 2, where Cullinan argued that Mockingbird Valley was attempting to subvert the Open Records Act intent.

In the response to the appeal the city said that it admitted that there are persons within the city that have custody of records, but has no records of who has custody, but allowed Cullinan access to records in the City Attorney’s office.

Beshear noted, per 99-ORD-98, that assuming there were actually no records responsive to Cullinan’s request, the city did not violate the Open Records Act, because a public agency cannot produce records it does not have. The city’s duty was completed in affirmatively stating they had no records, especially since it opened access to the records in the City Attorney’s office.

Beshear also stated that Mockingbird Valley subverted the intent of the Act, in KRS 61.880(4). Because the city did not have any rules or regulations on the matter of public records, it showed the city failed to comply with KRS 61.876(1).

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