Request By:
IN RE: Dr. Alan A. Johnson/University of Louisville
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the University of Louisville relative to Dr. Alan A. Johnson's September 9, 1992, and September 16, 1992, requests to inspect certain documents in the University's custody. On September 9, Dr. Johnson requested copies of "all purchase orders issued for the purchase of capital equipment for the Materials Laboratory in the Department of Chemical Engineering." On September 16, he asked for copies of "all invoices sent to industrial clients for work performed in the Materials Laboratory of the Chemical Engineering Department since it opened."
Dr. Johnson indicates that on September 11, 1992, Dr. William Morison, Director of the University Archives and Records Center, responded to his September 9 request, advising him that he would "check on the existence of such records and respond more fully as soon as [he could]." He asked that Dr. Johnson identify the period of time for which he wished to review purchase orders. Dr. Johnson states that he has not been contacted by Dr. Morison since his September 11 letter. He has received no response to his September 16 request.
Dr. Johnson also complains that the University has violated the Open Records Act by failing to comply with KRS 61.876, which requires public agencies to adopt rules and regulations in conformity with the Act, and to display a copy of those rules in a prominent location accessible to the public. He states that he has toured every floor of the six buildings which make up the Speed Scientific School, as well as the Ekstrom Library, and has found no copies of the rules and regulations posted. He asserts that the University is depriving faculty, staff, and students "of a benefit or right guaranteed by the Open Records Act by failing to see that appropriate posters relating to the Open Records Law are displayed in the University."
We are asked to determine if the University violated the Open Records Act by failing to produce the purchase orders requested by Dr. Johnson in a timely fashion. We are also asked to determine if the University's failure to respond to his request for invoices sent to industrial clients from a University laboratory constitutes a violation of the Act. Finally, we must determine if the University violated the Act by failing to display posters explaining its records policy. For the reasons set forth below, we conclude that the University's actions relative to the release of purchase orders and invoices constitute a technical violation of the Act. We do not have sufficient evidence to determine if the University has violated the Open Records Act by failing to display copies of the rules and regulations governing access to records.
This Office has been advised by Dr. Morison that his Office is currently attempting to access, retrieve, and copy the documents requested by Dr. Johnson. He acknowledges the University's obligation to release the records, but explains that the attempt to locate all of the purchase orders and invoices has taken considerable time. With respect to his failure to respond to Dr. Johnson's second request, he notes that he mistakenly assumed that the second request was identical to the first. As a result, he did not respond to the second request.
It is the opinion of this Office that the University has failed to provide timely access to the records identified in Dr. Johnson's requests. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
Dr. Johnson's initial open records request was submitted on September 9, 1992. Dr. Morison responded on September 11, 1992, well within the three-day response time prescribed by KRS 61.880(1). In that response, he indicated that he would check on the existence of the records and respond more fully when he could. As of October 29, 1992, Dr. Johnson had not been afforded access to the requested documents. Some fifty days have elapsed since the date of his initial request.
The University of Louisville erred in failing to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at p. 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request. " See also OAG 91-200; OAG 92-35. In Dr. Morison's last reported communication with Dr. Johnson, he stated that he would respond more fully "when he could." He did not designate the place, time, and earliest date on which the records would be available for inspection. We believe that a delay of this duration is inconsistent with the Open Records Act.
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records if an agency elects to segregate exempt information. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records, such time limitations are virtually impossible to meet. OAG 90-24, at p. 12.
Nevertheless, it is the opinion of this Office that the fifty days which have elapsed since Dr. Johnson submitted his initial request represent an inordinate and unreasonable delay. The University should therefore immediately arrange for Dr. Johnson to inspect the documents identified in his September 9 and September 16 requests.
In an early opinion, this Office recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and lcoal agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, at p. 3. Nevertheless, we have also recognized:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-374, at p. 5. We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of separating exempt and nonexempt materials. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
Turning to the final question raised in this open records appeal, we conclude that there is insufficient evidence to support a finding that the University has violated the Open Records Act in failing to adopt and post rules and regulations governing its public records policy pursuant to KRS 61.876. Dr. Johnson indicates that he has toured the buildings which make up the Speed Scientific School and the Ekstrom Library, and has been unable to locate a copy of the University's rules and regulations. KRS 61.876(2) provides, "Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public. " (Emphasis added). While the spirit of the Open Records law mandates the broadest possible dissemination of an agency's rules and regulations, the letter of the law does not specifically designate where the rules must be posted. Obviously, Dr. Johnson has not exhausted all of the possibilities.
In OAG 78-340, this Office held that KRS 61.876 mandates that each public agency shall adopt rules pertaining to public records and failure to do so constitutes a technical violation of the Open Records Act. If the University has, in fact, failed to comply with this statute, it should immediately post its rules and regulations. We may not assume, however, from the absence of a copy of the rules at the Speed School and in the Ekstrom Library, that the University has violated the Act.
The University and Dr. Johnson may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.