Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although the Department of Public Advocacy attempted to comply with the Act in responding to Gregory Valentine's June 21, 2011, request, the agency violated KRS 61.880(1) by failing to afford Mr. Valentine timely access to the records identified in his request or, alternatively, to provide him with a detailed explanation of the cause for delay and a statement of "the place, time, and earliest date on which the public record[s would] be available for inspection." KRS 61.872(5).
On June 21, Mr. Valentine requested copies of "all agency documents concerning the regulation of those instances wherein a prisoner has filed a pro se post-conviction action addressing a multiplicity of issues with the result that counsel employed by [DPA] is appointed by a court and consequent to judicial review by a trial court or intermediate appellate court the prisoner prevails on certain issues, but not on others." To its credit, DPA promptly responded to Mr. Valentine's request, advising him that the agency would "endeavor to find what documentation exists . . . as well as how much the cost or production will be . . . ." DPA indicated that "the search and production of these documents may take up to 30 days." Dissatisfied with this response, Mr. Valentine initiated this appeal questioning DPA's failure to provide a detailed explanation of the cause for delay or to indicate a specific date when the records would be available. "Notably," Mr. Valentine contended, DPA's response "contains not even a suggestion that the parameters of my request are broad, that the records implicated contain a mixture of exempt and nonexempt information, or that they are difficult to locate and retrieve."
In supplemental correspondence directed to this office, DPA General Counsel B. Scott West responded that "the enormity of the request . . . is self-evident, and any reasonable response to that request would take longer than three days." While we fully agree with DPA's position, we find that the Open Records Act nevertheless imposes a duty on the agency to provide Mr. Valentine with a detailed explanation of the cause for delay such as that contained in its supplemental response and a statement indicating the place, time, and earliest date the records will be available. In so concluding, we are mindful that "DPA has not refused his request, but is attempting to do a good faith, bonafide search for documents." Mr. Valentine would do well to bear this fact in mind rather than criticizing the efforts underway.
We will not belabor the issue on appeal. Mr. Valentine properly cites 09-ORD-139 for the proposition that KRS 61.872(5) requires a written response to a request for records that are not immediately disclosable because they are in active use, in storage, or not otherwise available within three business days of receipt of the request. That response must include a detailed explanation of the cause for delay and a statement indicating the earliest date the records will be available. KRS 61.872(5), and in particular, the language "not otherwise available," extends to broadly framed open records requests, like Mr. Valentine's, for widely dispersed public records. The single error committed by DPA was, therefore, its failure to strictly comply with KRS 61.872(5).
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.
Distributed to:
Gregory ValentineB. Scott West