Request By:
Captain Robert Forsythe
Post Nine
Kentucky State Police
Pikeville, Kentucky 41501
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
On behalf of his client Ms. Bonnie Phillips, Mr. Lawrence R. Webster has appealed to the Attorney General, pursuant to KRS 61.880(4), your handling of his May 26, 1992, request to inspect "all documents, manuals, policies or other memorabilia or memoranda reflecting the wrecker rotation call list policies or procedures for Post Nine. . . ." Mr. Webster indicates that the three day response time has expired, and he has not received notice of your decision.
In a conversation with the undersigned on July 9, 1992, you stated that you had compiled the requested documents, and were in the process of transmitting them to Mr. Webster when his appeal to this Office was filed. It is your position that although you are not obligated to provide him with the documents because he failed to personally tender his written request, you will nevertheless make them available to him.
Mr. Webster asks that we review your handling of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your response was procedurally deficient but substantively correct.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Mr. Webster's request was procedurally deficient insofar as it was not issued within three working days. Some thirty-two working days elapsed between the date of his request and the date of your response. "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 the latter opinion, we held 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 in accessing and retrieving those documents. OAG 92-35, at p. 6.
KRS 61.872(4) 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.
Under the terms of that provision, you should have advised Mr. Webster within three days of receipt of his request that the records would be made available for review, or provided him with a detailed explanation of the cause of the delay and arranged for inspection at the earliest possible date. Your failure to do so was inconsistent with the Open Records Act. We urge you to review the cited provisions to insure that future responses conform to the Act.
We have closely scrutinized each provision of the Act and are unable to locate clear authority for your position that a request must be personally delivered. KRS 61.872(1) provides:
All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right.
Similarly, KRS 61.872(2) provides:
Any person shall have the right to inspect public records during the regular office hours of the public agency. The official custodian may require written application describing the records to be inspected.
While an agency must, pursuant to KRS 61.876(1), adopt rules and regulations governing access to public records, those rules and regulations must conform to the spirit and the letter of the Open Records Act, and should facilitate, rather than hinder, access. Consistent with that spirit, we believe the Act envisions application in person or by mail. Indeed, we recently held that application can be made in person, by mail, or by fax transmission. OAG 92-13. There we stated:
[KRS 61.872(2)] does not specify the mode or method by which a written request must be made. It is intended to circumvent disputes relative to the identity of the records requested, and not to create additional obstacles to the release of those records.
OAG 92-13, at p. 2. The 1992 General Assembly amended KRS 61.872 to eliminate any lingering confusion by specifically providing that application may be "hand delivered, mailed, or sent via facsimile to the public agency. " KRS 61.872(2), as amended, effective July 14, 1992. It is the opinion of this Office that this amendment merely codifies existing practice. We therefore do not believe that an agency is relieved of its duty of responding to an open records request simply because the applicant's request was not hand delivered.
Turning to the substantive issue in this appeal, we find that you properly agreed to release the documents containing the wrecker rotation call list policies and procedures. These documents must be treated as nonexempt public records under the Open Records Law inasmuch as they do not fall under any of the exceptions codified at KRS 61.878.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Lawrence Webster. Both you and Mr. Webster may challenge it by initiating proceedings in the appropriate circuit court pursuant to KRS 61.880(5).