Request By:
Ms. Claresa A. Saylor, Records Officer
Department for Social Services
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
On behalf of his client, Ms. Jamie Gifford, Mr. John Brent Threlkeld has appealed to the Attorney General, pursuant to KRS 61.880, your response to his May 18, 1992, request for access to any and all records in the possession of CHR upon which Ms. Gifford's name appears or which may concern her. Mr. Threlkeld explains that his client was recently informed that a report of abuse and neglect of her daughter had been filed against her.
On May 18, 1992, Ms. Gifford and Mr. Threlkeld met with a representative of CHR at its Williamstown office. They were advised that they could not inspect any documents in the report. Mr. Threlkeld subsequently filed a request for open records in the regional and Frankfort offices of CHR.
You responded to those requests in a letter dated May 20, 1992. You indicated that the requested records "must be completed, copied, and forwarded to [your] office in order to determine if statutes permit [CHR to share] this material," and that the earliest possible date that the records could be made available would be July 1, 1992. This appeal followed.
Pursuant to KRS 61.872(4), on June 11, 1992, this Office requested additional documentation from CHR, in the form of a "detailed explanation of the cause" of these recurring delays in furnishing access to public records. We asked that you explain the logistics of locating and compiling documents, transferring them from regional offices to the Frankfort office, and determining whether they are exempt or nonexempt.
By letter dated June 18, 1992, you replied to our request, explaining in some detail the particular problems you confronted in responding to Mr. Threlkeld's open records request, and the problems you confront generally in responding to such requests. You indicated that on May 20, 1992, the same day you received Mr. Threlkeld's request, you spoke with Ms. Judy Curry, Family Services Office Supervisor, Division of Family Services, to obtain the documents, but were advised that the investigation was incomplete, the parties having been unable to schedule a meeting when all concerned could be present. You instructed Ms. Curry to forward a copy of the requested records to your offices as soon as the investigation was complete. As we have indicated, you also contacted Mr. Threlkeld on May 20, explaining the delay in processing his request.
On June 8, 1992, Ms. Stephanie Rose, Family Services Worker, Ms. Curry, Mr. Threlkeld, and his client met, and the investigation was concluded shortly thereafter. The completed Child Protective Services Investigation was faxed to your office on June 15. You reviewed the file on June 17, 1992, and it was sent to Ms. Curry on the same day to be released to Mr. Threlkeld. Thus, some twenty-one workdays elapsed between the date of his request and the date on which he was afforded access to the records.
Mr. Threlkeld has asked that we review your handling of his request to determine if this delay in providing access to public documents is consistent with KRS 61.872(4) and the Open Records Act. For the reasons set forth below, we conclude that you properly responded to his request.
OPINION OF THE ATTORNEY GENERAL
This is an appeal brought pursuant to KRS 61.880(4), which provides that if a person feels the intent of the Open Records Act is being subverted by an agency short of denial, he or she may complain to the Attorney General and that complaint shall be subject to the same adjudicatory process as if the record had been denied. Although CHR has released the requested documents to Mr. Threlkeld, he argues that the agency has subverted the Act by requiring him to wait an inordinately long period of time for release of the documents.
It is the opinion of this Office that CHR provided timely access to the records identified in Mr. Threlkeld's request. KRS 61.872(4):
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.
Mr. Threlkeld's initial open records request was submitted on May 18, 1992. You responded on May 20, 1992, advising him that the requested records must be retrieved and forwarded to your office to determine if the statutes permit release. You stated that the earliest possible date that the records could be made available would be July 1, 1992. In fact, the investigation was completed, and the records copied and forwarded to CHR within nineteen work days. Mr. Threlkeld was therefore afforded access to the documents within twenty-one work days of his initial request.
"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 (holding that agency response resulting in one hundred twenty eight day delay in access to records "suggests an improper disregard for the purpose and intent of the Open Records [Act]"); and OAG 92-35 (holding that a delay of some ninety-three days is inconsistent with the Act).
The Open Records Act does not prescribe a reasonable time within which a requester must be afforded access to public records. As we have noted, KRS 61.872(4) 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. 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 local 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 retrieving those documents. 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.
The Department of Social Services is one of several discrete departments within the Cabinet for Human Resources. It serves Kentucky's 120 counties through 123 local offices. Each office maintains its own records and those records are therefore widely dispersed. Nevertheless, almost every open records request is processed by the Department's central office in Frankfort. You indicate that since January 1, 1992, your office has received 405 requests, and released 408 cases, consisting of some 13,692 pages. Open records requests are directed to your office upon receipt, and you immediately begin a search. Once the records are located, you contact the Family Services Office Supervisor for that county and request a copy of the records. If the investigation is complete, the records are generally forwarded to your office within five working days, where they are reviewed and released on a "first in first out" basis. While we do not mean to adopt a rule of general application vis-a vis "timely access," we believe that on the facts presented in this appeal, twenty-one days does not constitute an inordinate delay in the release of public records.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. John Brent Threlkeld. Mr. Threlkeld may challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5).