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Mercer P&Z violated Open Records Act, AG rules

By KERRY STEINHOFER
kerry.steinhofer@amnews.com
HARRODSBURG — The Mercer County Joint Planning and Zoning Commission violated Kentucky’s Open Records Act by failing to provide copies of building permit and variance applications within the time allowed by law, according to a recent Kentucky Attorney General ruling.
On June 8, 2016, attorney Jeffery L. Schumacher requested “a copy of any and all applications filed in the last five years seeking a building permit or variance” from the Mercer County Joint Planning and Zoning Commission, according to the AG’s ruling.
On June 9, Executive Director of the Commission Shawn Moore requested an additional period of three weeks to provide the records requested because there were approximately 10,140 copies that would need to be made, according to the ruling.
After he had not received the records, Schumacher contacted Moore on July 11 about the open records request. According to the ruling, Moore replied the next day, “On advice of our legal counsel as a result of the pending appeal, all correspondence and inquiries are to be directed to our Planning Commission attorney Mr. David Patrick.”
Schumacher then filed his appeal to the Attorney General’s Office.
On July 19, Patrick responded to Schumacher’s appeal, arguing that the documents requested were exempt from open records requests. Patrick wrote he believes the commission is exempt because Schumacher currently represents a client in a circuit court appeal against the Mercer County Board of Adjustments and Appeals.
KRS 61.878(1) states that a specific list of types of records “shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.”
The list of record types that statement applies to does not include building permit or variance applications.
The AG’s office ruled that the Planning and Zoning Commission was misreading the law “as foreclosing a litigant from using the open records procedure to obtain any relevant materials outside the civil discovery process.”
The AG’s office cited other rulings, including a ruling from the Supreme Court of Kentucky, refuting the Planning and Zoning Commission’s argument.
“Given the lack of a substantive basis for denial of the records, we turn to the procedural basis upon which this appeal was brought,” the ruling reads. “… The commission having failed to produce the records within the three-week time frame represented to Mr. Schumacher, we find that a violation of the Open Records Act occurred.”