Request By:
Ms. Doris Kilgore
Fiscal Manager
Kentucky State Penitentiary
Box 128
Eddyville, Kentucky 42038-0128
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Keith Phillips, an inmate at Kentucky State Penitentiary, has appealed to the Attorney General, pursuant to KRS 61.880(2), your response to his March 13, 1992, request to inspect certain records in the possession of the Penitentiary. Those records are identified as: (1) the salaries of, and hours worked by, KSP canteen employees John Howard, Barbara Meredith, and Robin Davis; (2) the present balance in the KSP canteen fund; (3) a list of all items purchased by the KSP canteen and the cost of each item; and (4) documents verifying the cost of television satellite systems.
You responded to Mr. Phillips' request in a memorandum dated March 17, 1992, advising him that a copy of his request had been sent to Barbara Jones, the Correction Cabinet's General Counsel, for review. You did not, however, offer any explanation for the referral or consequent delay.
In his letter of appeal to this Office, Mr. Phillips argues that your memorandum was deficient insofar as you failed to comply with KRS 61.880(1), which requires the custodian to issue a written response within three working days. He observes:
The response of Mrs. Kilgore is not appropriate and there was no just cause for delay by referring my request to Corrections Cabinet Counsel. A verbal conference could have been held, if needed. Please be advised, I have requested similar records in the past and Assistant Attorney General Emerson had to order in his opinion that Corrections release such records, as he stated the salary and time any state employee or agency under the auspices of such state agency are open records. [sic] In fact, if you research his previous opinion, he stated all records of the canteen are public records and can be disclosed.
On April 3, 1992, you issued a formal response, releasing all of the information identified in Mr. Phillips' request with the exception of the list of canteen items and their cost. You explained that no such list exists. Citing OAG 89-61 and 76-375, you took the position that KSP is not required to compile a list if one does not already exist.
Mr. Phillips asks that we review your response to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your response was only partially consistent with the Act.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon the receipt of a request for records under the Open Records Act, respond in writing to the requesting party within three working days of the receipt of the request, indicating whether the request will be granted.
Nothing in the statute permits an agency to postpone or delay its written response pending review by agency counsel. Upon receipt of a request to inspect documents, an agency is required to respond within three working days pursuant to KRS 61.880(1). OAG 81-4; OAG 83-23; OAG 89-79.
There are limited exceptions to this general rule. KRS 61.872 provides:
(3) If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
(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.
(5) If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.
You did not advise Mr. Phillips that his request was misdirected, or that it placed an unreasonable burden on your office. Nor did you state that the requested records were in active use, in storage, or not otherwise available. Assuming for the sake of argument, that you encountered one of these exigencies, you should have so advised him, or provided a "detailed explanation of the cause" and indicated the earliest date on which the records would be available for inspection. Having failed to do this, we conclude that your March 17, 1992, memorandum was technically deficent. Thenceforward, KSP should comply with KRS 61.880 by issuing a response within three working days. If an open records request is misdirected, places an unreasonable burden on your office, or the requested records are not immediately available, KSP's response should conform to KRS 61.872(3), (4), or (5).
Because you have provided Mr. Phillips with the information he requested, we need not address the question of the propriety of release. We concur with you in your view that an agency is not required to compile a list, such as that requested by Mr. Phillips, if one does not already exist. OAG 76-375; OAG 79-547; OAG 80-308; OAG 81-33; OAG 89-61. We believe that you properly responded to that portion of his request.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Keith Phillips. Both Mr. Phillips and KSP may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).