Request By:
Owen Covington, ReporterLouis Johnson, ChairmanPatrick D. Pace
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Central City Dispatch violated the Open Records Act in denying Messenger-Inquirer Reporter Owen Covington's request for copies of records relating to Robert "Bob" Hunzinger, general manager for Owensboro Municipal Utilities. For the reasons that follow, we find that the response of Owensboro Municipal Utilities (OMU) violated KRS 61.880(1) and KRS 61.872(5), and failed to meet its statutorily assigned burden of proof, in partially denying Mr. Covington's request.
Specifically, in a letter dated September 10, 2007, Mr. Covington requested access to and a copy of:
[A]ll employment and discipline records relating to Robert "Bob" Hunzinger, general manager for Owensboro Municipal Utilities, and a copy of any records or information relating to his retirement, resignation or termination from Owensboro Municipal Utilities. I also request a copy of records or minutes pertaining to any official action taken by the City Utility Commission taken within the last 30 days regarding the employment of Mr. Hunzinger.
By letter dated September 13, 2007, Patrick D. Pace, counsel for Owensboro Municipal Utilities, responded to Mr. Covington's request, advising:
Since your request seeks all records related to Mr. Hunzinger's employment, some of the information sought may be personal in nature and exempt or otherwise protected from inspection under applicable law, including, but not limited to, KRS 61.878(1)(a) . Therefore, Mr. Hunzinger has been advised of your request and is being provided an opportunity to review and articulate or assert any exemption or privilege which he believes may apply to the records.
Consequently, OMU will need additional time to respond to your request, but will do so as soon as possible.
On September 26, 2007, Mr. Covington initiated an appeal to this office, asserting that the agency had failed to allow him to inspect the requested records in a timely manner as required by law.
After receipt of notification of the appeal, Mr. Pace provided this office with a copy of the agency's October 2, 2007, response to Mr. Covington, in which he advised, in relevant part:
I have now had time to review the documents for which protection or redaction has been sought by Mr. Hunzinger and his counsel and to review applicable law. I can make available the non-exempt, or non-exempt portions of, the records you requested to inspect nearly any time on a regular business day between 8:30 a.m. and 4:30 p.m. at my office, upon reasonable prior notice.
We are withholding as exempt from inspection documents or portions of documents, the disclosure of which may constitute an unreasonable invasion of personal privacy. Pursuant to KRS 61.878(1)(a) and (j) and all other applicable law. The exemptions are explained and authorized by Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1995); OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-203; OAG 86-15; OAG 89-90; 93-ORD-1375; 94-ORD-54; 04-ORD-132; 96-ORD-51; 96-ORD-256; 96-ORD-275; 99-ORD-14; 99-ORD-41; 02-ORD-197; 04-ORD-045.
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 requesting party within three working days of receipt of the request. 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 'provi[sion of] services to the public.'" 00-ORD-117, p. 4.
In addressing these duties, the Attorney General has 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.
Mr. Covington submitted his request on September 10, 2007. The agency responded within three business days, but that response did not conform to the specific requirements set forth at KRS 61.872(5) or KRS 61.880(1).
OMU's response advised that it needed additional time to respond to the request and would do so as soon as possible and explained that the purpose of the delay was to provide Mr. Hunzinger an opportunity to review and articulate or assert any exemption or privilege which he believed may apply to the requested records. However, the response did not state the earliest date on which the records would be available. The fact that Mr. Hunzinger was advised of the request and was given an opportunity to review the requested records to assert an exemption from disclosure, did not relieve the City of its obligations under the Open Records Act. 96-ORD-238, p. 3. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in his request, is, as we have noted, as much a public servant's legal duty as any other essential function." 00-ORD-117, p. 5. OMU's failure to notify Mr. Covington of its decision within three working days whether it would provide him the requested records, as required by KRS 61.880(1), was a violation of the Open Records Act. Allowing him or his attorney to review the requested records for what they might consider to be privileged or exempt from disclosure does not toll the time requirements of the Open Records Act.
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. OMU
OMU's response did not claim the requested records were "in active use, in storage or not otherwise available," thus, allowing the application of KRS 61.872(5). It advised that the delay in providing access to the requested records was to provide Mr. Hunzinger and his attorney an opportunity to review and assert any exception that they believed may apply to the records. Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994), established that a party affected by an agency's decision to release records has standing to contest the decision in court under the plain meaning of KRS 61.882(1). Although an agency may wish to notify an affected party that it intends to release records relating to him in order that he may take such action as he may deem appropriate should he wish to prevent disclosure or otherwise assert any rights he may have under KRS 61.882(1), it is not required to do so under the Open Records Act. However, an agency should not ignore its obligation under KRS 61.880(1) to timely provide the requester with the requested records after the notification is given.
Focusing on the particular duties of a public agency in dealing with such a request, the Attorney General opined:
Clearly, Beckham establishes that a party affected by an agency's decision to release records has standing to contest the decision in court under the plain meaning of KRS 61.882(1). The court exhaustively documents the herculean efforts of the affected parties to prohibit the agency from releasing the records relating to them. In Lexington-Fayette Urban County Government , the court emphasized that under Beckham it is the affected party who, upon receipt of notice that a request has been made, must "take such further action as he deems appropriate." It is not incumbent on the agency to "force [the affected party's] hand" or compel him "to articulate his reason for wanting the document to remain confidential."
It is instead incumbent on the public agency to responsibly discharge its duties under the Open Records Act. The "right of persons who might be affected by the release of governmental information to be heard on their privacy claim," which was recognized in Beckham and Lexington-Fayette Urban County Government , is triggered when a public agency expresses its intention to disclose that information, and the affected parties commence litigation prior to disclosure. Lexington-Fayette Urban County Government at 472. It cannot be employed by a public agency to avoid its duties under KRS 61.880(1) to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of [a] request whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision."
98-ORD-24, at p. 5.
The failure to advise Mr. Covington within three working days of its decision whether it would comply with his request and the earliest date certain when the records would be available for his inspection was a violation of KRS 61.880(1) and KRS 61.872(5). 06-ORD-134.
As noted above, OMU advised Mr. Covington that it withheld some records and portions of records under "KRS 61.878(1)(a) and (j) and all other applicable law. " However, the record before us does not reflect compliance with KRS 61.880(1), requiring "a statement of the specific exception authorizing the withholding of the record [or portion of the record] and a brief explanation of how the exception applies to the record or portions of the record withheld. " See Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996) (requiring "the custodian of records to provide particular and detailed information in response to a request for documents"). Although the OMU cited the statutory exceptions upon which it relied for nondisclosure of the requested records, it failed to briefly explain each exception's application to the records withheld. "While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld to a specific exemption, such as that required by the federal courts in Vaughn v. Rogers, 484 F.2d 830 (D.C. Cir. 1973) cert. denied 415 U.S. 977 (1974), . . . we believe that the [OMU] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable. " 97-ORD-41, p. 6, 7.
To satisfy the burden of proof imposed by KRS 61.880(2)(c), the OMU is required to provide a written response identifying any records which are responsive, but are not being disclosed, citing the applicable statutory exception, and briefly explaining how it applies to the records withheld. Citing a string of Attorney General decisions and court decision without an explanation as to their application to the exception relied upon to particular records or portions of records withheld does not meet this burden. Its failure to do so in response to Mr. Covington's request constituted both a procedural and substantive violation of the Open Records Act.
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.