Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; THOMAS R. EMERSON, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by David B. Wrinkle in connection with his requests to the Cabinet for Human Resources for copies of records concerning a particular person.
In requests dated December 14, 1995 and January 19, 1996, Mr. Wrinkle asked the Cabinet for Human Resources for copies of records pertaining to a specifically named individual and copies of releases from that person for the records requested were included.
In his letter of appeal, received by this office on March 8, 1996, Mr. Wrinkle said he had not received any response from the Cabinet for Human Resources regarding either of his requests.
After the receipt of Mr. Wrinkle's appeal this office received a copy of a letter to Mr. Wrinkle, dated March 15, 1996, from Ms. Pam Aldridge, Assistant Director, Division of Reimbursement Operations, Cabinet for Human Resources, stating in part that the Department has no record of having received the December 14, 1995 letter. Ms. Aldridge acknowledged receipt of the January 19, 1996 letter but said it was not recognized as a request under the Open Records Act. Her letter also contained the following sentence: "It should be noted that the information you requested is not available at this time, due to delays encountered as a result of the change in the MMIS contractor, but will be forwarded to you when it becomes available."
Provisions relative to the right to inspect public records are set forth in KRS 61.872 and subsection (5) of that statute states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately 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.
In 93-ORD-43, copy enclosed, at page five, this office, in dealing with the above-quoted statutory provision, said in part as follows:
This section may be invoked only if a record is "in active use, in storage or not otherwise available. . . ." Any notification of a delay in affording access to the record in excess of three days must be accompanied by a detailed explanation of the cause and a statement of the earliest date, time, and place on which it will be available for inspection. KRS 61.872(5) does not permit an agency to postpone its decision for reasons other than those enumerated in the statute.
In 95-ORD-132, copy enclosed, at page two, this office said in part that if the records requested are not readily available, that circumstance might necessitate a reasonable extension of the three-day period of limitation. However, the burden is on the public agency to provide a detailed explanation of the cause of the delay and to arrange for inspection at the earliest possible date. See also 95-ORD-130, copy enclosed.
It is, therefore, the decision of the Attorney General that while the Division of Reimbursement Operations, Cabinet for Human Resources, has belatedly provided an explanation as to why the records requested are not available for inspection, that entity violated the Open Records Act by not furnishing to the requesting party the earliest date on which those records will be available for inspection. The public agency should immediately advise the requesting party in writing as to the earliest date on which those records will be available.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.