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 Louisville Metro Department of Public Health and Wellness subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 in the disposition of Mark S. Ohlmann's February 21, 2007, request to inspect, or obtain copies of, "the last three routine inspection reports" for twenty-two restaurants identified by name and location. For the reasons that follow, we find that the Department's actions constituted a subversion of the intent of the law based upon its failure to afford Mr. Ohlmann timely access to the records identified in his request.
In his February 28, 2007, letter of appeal, Mr. Ohlmann explains that he received no written response to his request, but received a voicemail message from a clerk in the Department's Food Hygiene Program on February 22. 2 The clerk acknowledged receipt of the request, and advised that the records would be available on March 1, 2007, some six business days after Mr. Ohlmann's request was submitted. On February 28, Mr. Ohlmann received a second voicemail from the clerk revising the disclosure date to March 6, 2007, some nine business days after his request was submitted. As a consequence, Mr. Ohlmann initiated this appeal asserting that "Louisville Metro Health Department has not complied with its legal obligation under KRS 61.872 . . . ."
In correspondence directed to this office following commencement of Mr. Ohlmann's appeal, Assistant Jefferson County Attorney Paul V. Guagliardo defended the Department's actions, noting that it has met its statutory obligations "time and again" in responding to his requests. 3 With reference to Mr. Ohlmann's current request, Mr. Guagliardo explained:
On February 22, 2007, Mr. Ohlmann was contacted via voice mail and advised that his February 21 request had been received and would be completed by March 1, 2007. Mr. Ohlmann voiced no objection to that timetable. The custodian of records had been out sick and returned to work on February 28, 2007. The custodian wanted to review the records to ensure that the request had been met in full. The custodian advised a clerk to contact Mr. Ohlmann and advise that the records would be available on March 6, 2007, three business days later.
Mr. Ohlmann phoned back and objected to the additional delay. Accordingly, the custodian of records phoned Mr. Ohlmann and advised that the requested material was available for pick-up that day, March 1. This was the same day as originally promised. Mr. Ohlmann retrieved the information the next day, March 2, 2007.
On this basis, Mr. Guagliardo concluded that the Department of Public Health and Wellness "fully complied with the Open Records Law." 4 Respectfully, we disagree.
As noted, KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3.
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.
The Department's verbal response to Mr. Ohlmann's request was deficient insofar as it failed to offer a detailed explanation of the cause for delay. Moreover, assuming that March 1 was the earliest date on which the records would be available for inspection, we believe that the Department was bound to observe this self-imposed deadline. Its unilateral decision to extend the deadline, again without accompanying explanation, was improper. Although the Department retreated from its position after Mr. Ohlmann raised objections, it nevertheless erred in this regard, and its remedial action did not entirely mitigate that error. In view of this unexplained delay of six to nine days, and an apparent pattern of regularly postponing Mr. Ohlmann's access to nonexempt public records, we find that the Department subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), in the disposition of Mr. Ohlmann's request.
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.
Mark S. Ohlmann, CFSP
Paul V. GuagliardoAssistant Jefferson County Attorney444 S. 5th StreetLouisville, KY 40202
June Kelley RoyLouisville Metro Health Department527 W. Jefferson StreetLouisville, KY 40202
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Clearly, a voicemail message does not constitute a legally recognized method of responding to an open records request. KRS 61.880(1) expressly requires an agency to issue a written response to a request within three business days. KRS 61.872(5) amplifies on this obligation by requiring the agency to immediately notify the requester if the requested records are "in active use, in storage, nor not otherwise available" and cannot be produced in three business days. To eliminate any dispute as to its content, that response should also be in writing.
3 Mr. Guagliardo indicates that "[t]his is the twentieth documented open records request from Mr. Ohlmann since August 2005."
4 In a reply to the Department's response to his appeal, Mr. Ohlmann acknowledged submission of "many open records requests . . . since August 2005," but disputed Mr. Guagliardo's assertion that the Department fully complied with the Act in disposing of these requests. He noted that in many instances responsive records were not disclosed "for nine business days or longer." In support, Mr. Ohlmann enclosed four previous requests, and the agency's actions thereon, reflecting delivery of the records requested outside the three business day deadline.