Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Paintsville Utilities subverted the intent of the Open Records Act, short of denial of inspection, by failing to afford Paintsville Herald reporter Rachael Hill timely access to records responsive to her October 10, 2012, request for "documentation on the insurance premiums paid by Paintsville Utilities for Grace Anderson since 2002 . . . , including a total amount spent by Utilities." 1 The scope of Ms. Hill's request does not warrant a nine and one-half week delay in production of all responsive records.
In a timely written response, Paintsville Utilities General Manager Eric Ratliff notified Ms. Hill that the Utilities would honor her request, but that given the necessity of locating responsive invoices and redacting protected information, the Utilities required "a period of one (1) month in which to perform this identification and redaction. " He explained:
Paintsville Utilities pays insurance premiums through a monthly lump sum payment for all employees. To determine the amount of insurance premiums paid for Grace Anderson since 2002 will require the Utilities to go through its storage files and locate and manually pull each monthly invoice for the ten (10) year scope of your request and then redact all other individuals not covered in your request. 2
Continuing, Mr. Ratliff described the problems associated with "cross-referenc[ing] receipts to the insurance premiums found to determine whether the Utilities in fact spent any money for the insurance premiums. "
On November 19, 2012, The Paintsville Herald initiated this appeal advising the Attorney General that the projected one month extension for production of the records had passed and the records had not been produced. In supplemental correspondence dated November 28, 2012, the Utilities confirmed that the process of locating invoices and manually redacting "all other names, addresses, amounts paid, and other personal information of other individuals not contained within the scope of Ms. [Hill's] request" had, as anticipated, been time-consuming and burdensome. Although some documentation had been located, the Utilities indicated that its search was incomplete and that an additional two weeks would be required. On December 19, 2012, Paintsville Herald Editor Paula Halm advised this office that the requested records had not, as of that date, been produced. We find that this delay was unwarranted and that the actions of the Paintsville Utilities subverted the intent of the Act, short of denial of inspection.
In two recent open records decisions, the Attorney General determined that an extension of the statutory deadline for agency production of public records was justified in view of the number of records implicated by the requests and the necessity of reviewing each record to insure that statutorily protected information was not disclosed. The first decision, issued in May 2012, involved 22,117 emails in a library director's account that included exempted patron records and exempted records relating to ongoing personnel actions. 12-ORD-097. The second decision, issued on December 21, 2012, involved 249,504 emails in ten public agency employees' accounts or that contained one or more of sixty-nine specified terms. 12-ORD-228. Copies of both open records decisions are attached to demonstrate the type of request that warrants an extension of the statutory deadline. Although we emphasized in each appeal that the projected six month extension of the deadline "represent[ed] the outer most limit of acceptable delay," and that agencies "must firmly commit to releasing the records . . . on or before the [stipulated] date," we reminded the parties that applicants submitting requests for vast numbers of records "could not reasonably expect agencies . . . to produce all responsive records within the three day deadline. " 12-ORD-097, p. 6.
Ms. Hill submitted "a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure." Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). The parameters of Ms. Hill's request were not broad and the demands associated with redaction of protected information were correspondingly negligible. Bearing in mind that the Utilities cannot rely on "inefficiency in its own recordkeeping system to thwart an otherwise proper open records request," Chestnut at 665, citing KRS 61.8715, there is no justification for a nine and one-half week delay in production of the records. Accordingly, we find that the Paintsville Utilities subverted the intent of the Open Records Act by failing to afford The Paintsville Herald timely access to the records identified in Ms. Hill's request. It is incumbent on the Utilities to make immediate arrangements for Ms. Hill to inspect and/or obtain copies of the one-hundred and twenty monthly invoices, and related records, she requested on October 10.
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:
Paula HalmEric RatliffA. David Blankenship
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 Ms. Anderson is the mother of an employee of the Utilities. She is not, and has never been, an employee of the Utilities.