Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Shepherdsville violated the Kentucky Open Records Act in the disposition of Regina G. Rummage's two February 23, 2011, requests ("current payroll records for all [City] employees and their job titles" and a "list of all checks and who the checks were made payable to from the [City] Sewer Account and the [City] Operation and Maintenance Account from January 1, 2011, to January 31, 2011"), February 24, 2011, request ("list of all checks, who each check was made payable to and the amount of each check for the [City] Capital Projects Account from January 1, 2011, through January 31, 2011"), and February 28, 2011 ("copies of all 1099-MISC forms" for 2009-2010), request. In four separate but nearly identical and timely responses dated February 28, 2011, City Clerk Tammy Richmond advised Ms. Rummage that the City intended to comply with each request "according to law" but "due to the exorbitant amount of time it will take to gather the requested information we will need additional time to comply and every effort will be made to comply as soon as possible." Ms. Rummage initiated this appeal by letter dated March 7, 2011. The analysis contained in 10-ORD-201 (In re: Regina Rummage/City of Shepherdsville, issued October 19, 2010), regarding application of KRS 61.880(1) and 61.872(5), applies with equal force on the facts presented.
Upon receiving notification of Ms. Rummage's appeal from this office, Ms. Richmond responded on behalf of the City, advising that the City is "short staffed under serious budget constraints" and she feels that "shutting down all other business operations at City Hall to answer an open records request is not serving the taxpayers of Shepherdsville's best interests." Ms. Richmond reiterated that Ms. Rummage "will get all requested information" and emphasized that the City is doing the best it can "to get it to her in as timely [of a] manner as possible." Because the City has already provided some documents, and has agreed to provide Ms. Rummage with all of the remaining documents at some point in the near future, 1 only the procedural issues presented require further comment.
The challenges facing many state and local agencies due to staffing shortfalls resulting from severe budget cuts are well documented; however, the Open Records Act does not contain any waiver of the mandatory requirements contained therein for public agencies due to challenging economic times. The City issued a timely but otherwise deficient response. Inasmuch as the Attorney General had occasion to remind the City of its procedural obligations under KRS 61.880(1) and 61.872(5) as recently as October 2010, in 10-ORD-201, this office will not unnecessarily lengthen the instant decision by recapitulating the well-established law upon which that decision was based. A copy of 10-ORD-201 is attached hereto and incorporated by reference. The City is encouraged to closely review pages 4-7 in particular. As in that case, this office finds that "a reasonable extension of time may have been justified on the facts presented, [but] it was incumbent on the City, as it is on any public agency, 'to make proper provision for the uninterrupted processing of open records requests.'" 10-ORD-201, p. 7 (citation omitted). Contrary to the City's apparent belief, "[t]he duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much of a public servant's legal duty as any other essential function." 01-ORD-21, p. 4 (emphasis added); 10-ORD-201. Although the City again issued a timely response, it was otherwise deficient insofar as the City failed "to specify all of the records which did not exist in the initial response and provide timely access to existing responsive documents or, in the alternative, cite KRS 61.872(5) and provide a detailed explanation of the cause for delay in producing any existing records." 10-ORD-201, p. 4. In sum, this office has no basis upon which to find that a substantive violation of the Act was committed; however, the City's response(s) was unquestionably deficient from a procedural standpoint.
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 Ms. Rummage contacted the undersigned counsel by telephone following the City's March 11, 2011, response and indicated that she was ultimately provided with copies of the responsive payroll records. Any related issues are thus moot per 40 KAR 1:030, Section 6. Apparently the City also belatedly advised her that no responsive "1099-MISC forms" exist and it cannot produce that which it does not have. Insofar as Ms. Rummage was provided with any existing responsive documents in response to her first request, and was essentially satisfied with the response that she received to her final request aside from its belated nature, consideration of any related substantive issues would be unnecessary even assuming that any were presented in addition to the procedural issues.