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 Kentucky State Police violated the provisions of KRS 61.870 to 61.884 in the disposition of Capitol Publishing's July 19, 2007, request, "[p]ursuant to the provisions of the Kentucky Open Records Act . . . and the Office of the Attorney General Opinion, 07-ORD-153 (July 19, 2007)," for "an electronic data extract of the Collision Report Analysis for Safer Highways (CRASH) database of data for the period of July 1, 2007, to and including July 18, 2007, on removable computer disk(s) or other electronic transmission . . . ." 1 For the reasons that follow, we find that KSP violated KRS 61.880(1) in failing to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after receipt of [Capitol Publishing's] request whether to comply with the request and [to] notify [Capitol Publishing,] . . . of its decision."
In a letter dated July 24, 2007, KSP's Official Custodian of Records, Mary Ann Scott, referenced 07-ORD-153 and advised Capitol Publishing Editor James Donato as follows:
Pursuant to KRS 61.880(5)(a), the Kentucky State Police has thirty (30) days from the date that the Attorney General renders a decision to appeal the decision. At this time, the agency has not reached a final decision as to how it wishes to proceed. Therefore, please be advised that a response to your above-referenced request shall be mailed to you on or before August 15, 2007.
Ms. Scott indicated that "[i]n light of [Capitol Publishing's] previous requests made for commercial purposes, this request is also being treated as a request for a commercial purpose." She acknowledged Capitol Publishing's right to seek review of KSP's action "in accordance with KRS 61.880 . . . ."
Shortly thereafter, Capitol Publishing initiated this appeal questioning KSP's ability "to extend its response time to [the] records request to thirty days . . . by citing KRS 61.880(5)(a)." In support of Capitol Publishing's position, Mr. Donato cited 97-ORD-98 for the proposition that "An agency, which is in litigation with the requester, may not extend its response time to thirty days, and is instead bound to conform to the procedural requirements of the Open Records Act, and in particular the requirement that it respond to the request within three days."
In supplemental correspondence directed to this office following commencement of Capitol Publishing's appeal, KSP amplified on its position advising this office that on July 30, 2007, the Department denied the July 19 request "on the merits." On this basis, KSP asserted:
In this respect, Donato's requested relief for a decision on the merits of his request is moot. With respect to Donato's reliance on 97-ORD-98, that opinion addresses the issue of whether an agency involved in pending litigation with a requester may treat an open records request as a request for discovery under the rules of civil procedure and delay response for 30 days.
With reference to its failure to issue a final response within three business days, KSP explained:
Donato immediately upon release of 07-ORD-153 submitted another request for records that were the subject of dispute under that opinion. The Department, which could elect to exercise its appellate rights under KRS 61.880, properly advised Donato that it was evaluating its option in that regard. Even if the Department's request could be characterized as procedurally deficient in this respect, it would not appear that the underlying purposes of the open records act would be furthered by requiring an agency to continuously issue "three day letters" to a persistent requester of disputed records prior to the expiration of the appellate period provided under KRS 61.880.
In closing, KSP noted that enforcement of the three day response requirement would be particularly inappropriate in this context "as a secondary holding of 07-ORD-153 on which Donato relied in his July 19, 2007, request has opined that commercial requesters of motor vehicle collision report information, as the Department has deemed Donato's to be, are not statutorily entitled to the release of such information in the first instance." Respectfully, we disagree that enforcement of the three day response requirement is inappropriate in this context.
KRS 61.880 sets forth 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 requester in writing within three business days of receipt of the request and to notify the requester of its decision as to whether it will comply with, or deny, the request. These requirements, the Attorney General has often observed, "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. Moreover, in construing KRS 61.880(1) the Kentucky Court of Appeals has declared that "[t]he 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, 926 S.W.2d 856, 858 (Ky. App. 1996). Discharge of these duties is required by law with very limited statutory exception.
In a seminal decision addressing the duties imposed by KRS 61.880(1), 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 otherwise available, the agency is required to notify the requester of its decision within three working days . . . .
93-ORD-134, p. 3; cited in 96-ORD-185; 01-ORD-124; 06-ORD-128. In the latter decision, this office admonished KSP for the "indefinite postponement of final disposition" of an open records request while that request underwent review by KSP's Legal Branch. 06-ORD-128, p. 4. There, we found "no support in existing legal authority" for KSP's position. Id. Here, too, we find no support in the Open Records Act for postponing final disposition of a records request while the agency evaluates its options under KRS 61.880(5)(a) relative to an earlier open records decision. Regardless of whether "the underlying purposes of the Open Records Act would be furthered by requiring an agency to continuously issue 'three day letters' to a persistent requester of disputed records prior to the expiration of the appellate period provided under KRS 61.880," the Act does not expressly or impliedly relieve an agency of this duty under these or any other circumstances with the exception of the circumstances described in KRS 61.872(4) and (5). KSP's July 24 response was procedurally deficient and constituted a violation of KRS 61.880(1). 2
To the extent that KSP's belated denial of Capitol Publishing's request is based upon this office's decision in 07-ORD-153, we affirm that denial for the reasons set forth therein.
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.
Footnotes
Footnotes
1 Capitol Publishing requested the same data elements that were identified in its April 19, 2007, request, and that became the subject of 07-ORD-153, but for a later period in time.
2 Per 40 KAR 1:030 Section 6, an open records complaint is only moot "[i]f the requested documents are made available to the complaining party after a complaint is made . . . ." We therefore find unpersuasive KSP's argument that "Donato's requested relief for a decision on the merits" was mooted by its July 30 final disposition of his request "on the merits."