Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Casey County Extension District Board violated the Open Records Act in the disposition of James D. Young's July 15, 2005, request to inspect the district's financial and operational records for an eight year period. For the reasons that follow, we find that the Board's disposition of Mr. Young's request was procedurally deficient. Further, we find that although the request implicates voluminous public records, and that the Board has demonstrated that it operates with a limited staff, the Board is nevertheless obligated to locate, retrieve, and produce for inspection any existing public records that are responsive to Mr. Young's request in a timely fashion by notifying him of the earliest date certain when the records will be available. We believe that the proposed, yet somewhat speculative, inspection date of "sometime during the week of November 13th through the 17th, 2006," falls short of the statutory requirement of timely access and that an inspection date of August 31, 2006, represents a reasonable time for recovery and production of the records.
Having received no response to his July, 2005, request, Mr. Young initiated this open records appeal on July 17, 2006. In correspondence directed to this office following commencement of the appeal, Chairman John D. Gossage defended the Board's inaction in relation to Mr. Young's request. He explained:
Our Extension District Board is a voluntary board. We all have jobs and lives other than the Extension Office. Our Extension Office has been very short staffed over the past year. The Staff Assistant is the only person that has been staffed in the office since July 2005. The UK Extension Agents have not been staffed at of our office for various reasons since July 2005. We have not had the staff on hand to comply with Mr. Young's request. 1
While we appreciate the Board's attempt to accommodate Mr. Young's request, we find that its proposed accommodation will result in an unreasonable delay in affording him access to the requested records. Moreover, we find that its failure to respond, in any fashion, to the 2005 request constituted a violation of KRS 61.880(1).
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. 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 record 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 construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has opined that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 3, and that the discharge of these statutorily assigned duties is "as much a legal obligation of a public agency as the provision of services to the public." 00-ORD-117, p. 3. A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act - much less . . . amount [] to substantial compliance." Edmondson, at 858. The failure to respond, in any fashion, to an open records request, is especially egregious.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. We reach the same conclusion in the appeal before us.
At page 11 and 12 of 93-ORD-134, the Attorney General reasoned:
"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 page 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."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . 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.
In an early opinion, this office recognized:
OAG 77-151, at p. 3. . . . 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 accessing and retrieving those records. 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.
Consistent with the principle that "the value of information is partly a function of time," Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999), and notwithstanding the fact that the Casey County Extension District Board operates with limited in-house staffing, we cannot agree that postponing access for a period of some three months is reasonable in light of "the breadth of the request and the number of documents it encompasses . . . ."
As noted, the only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
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 construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6. Elaborating on this view, in 01-ORD-38 the Attorney General declared that "KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. " The Board's ultimate response to Mr. Young's request, in addition to being untimely, and misdirected to this office instead of Mr. Young, was deficient insofar as it did not contain a detailed explanation of the cause for delay or a statement of the earliest date certain on which the records identified in that request will be available for inspection. Although an extension of the standard three day deadline for agency response and release of records may be warranted in this instance, we find that the proposed inspection date is violative of the Open Records Act, especially in light of the fact that Mr. Young's request was submitted over a year ago. It is incumbent on the board to locate, retrieve, and produce all responsive records in its custody on or before August 31, 2006.
Mr. Young requests financial and operational records of the Board that include minutes of its meetings, checking account records, cancelled checks, bank statements for all certificates of deposit, savings and other accounts, and audits "for the past eight years." Given the applicable retention schedule for the requested records, 2 and assuming the Board adhered to proper records destruction practices, some of these records may no longer exist. For example, cancelled checks appear at Records Series U0805 and bank statement at Records Series U0801. The disposition instructions for both records series require retention in the agency for three years and destruction after audit. Moreover, such responsive records as do exist may be subject to redaction to insure nondisclosure of sensitive information, including account numbers and other identifiers, that lends itself to subversive use. Accord, 95-ORD-121 (holding that it is "incongruous to attribute to the General Assembly an intention to require public agency revelation of . . . public records which would facilitate" misuse, abuse, and subversion of the law, and affirming agency reliance on KRS 61.872(6) to support nondisclosure of records where disclosure "would place an unreasonable burden on the agency because the agency would be forced to overhaul an existing system each time the records were requested and released"); see also, 04-ORD-058 and authorities cited therein. With the exception of these permissible redactions under KRS 61.872(6), we find that the Casey County Extension District Board must produce all existing records in its possession for Mr. Young's inspection on or before August 31, 2006.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
James D. Young423 Loop RoadHustonville, KY 40437
John Gossage, ChairmanCasey County Extension District Board1517 South Wallace Wilkinson Blvd.Liberty, KY 42539
Thomas M. Weddle, Jr.628 Campbellsville StreetP.O. Box 190Liberty, KY 42539
Katherine J. HornbackReinhardt & Associates, PLC128 Dennis DriveLexington, KY 40503
Footnotes
Footnotes
1 Mr. Gossage proceeds to describe a series of events involving Mr. Young and the Board that have occurred, or are alleged to have occurred, in preceding years. For purposes of our open records analysis under KRS 61.880(2), these events have no bearing.
2 Because the Extension District is affiliated with the University of Kentucky, we assume that its records are governed by the State University Model Records Retention Schedule. (Enclosed.) Inquiries concerning the application and implementation of the referenced schedule to the District's records should be directed to Terry Birdwhistle, Associate Dean, Special Collections and Digital Programs Division at the University of Kentucky, or to the State Records Branch of the Kentucky Department for Libraries and Archives.