Request By:
Tyler Fryman
Jerome D. Knockelmann
Charles L. Korzenborn
Stacy Tapke
Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Kenton County Sheriff's Department ("KCSD") violated the Open Records Act in not specifying the reason for delay and the date, time, and place when records would be available, in unreasonably delaying production, or in attempting to impose fees on inspection. We find that KCSD committed a procedural violation of the Open Records Act in not properly specifying in its response the reason for delay and the date, time, and place when the records would be available. KCSD did not subvert the intent of the Open Records Act short of denial of inspection through unreasonable delays or a mistaken reference to imposing fees on inspection.
Tyler Fryman ("Fryman") submitted an open records request to the KCSD on Aug. 5, 2015. Fryman requested:
(a) Any and all reviews posted to the Sherriff's Facebook page from Jan. 1, 2015 to Aug. 5, 2015.
(b) Any and all documents, to include but not be limited to drafts, memos, PowerPoint presentations (or any presentations made using other software), and emails that were made referencing "Facebook" from July 1, 2015 to Aug. 5, 2015.
(c) Any and all emails to any employee of the Sheriff Department that contains any of the following words: "Facebook", "Face Book", "Kevin Sumner", "Mr. Sumner", "Officer Sumner", "Deputy Sumner", "Covington Independent" from Jan. 1, 2014 to Aug 5, 2015.
(d) Any complaints against any employee of the Sheriff's Office and, if any, the final recommendation made by the Sheriff or their supervisor from Jan 1, 2014 to Aug 5, 2015.
(e) All operating procedures that reference school resource officers.
(f) All non-exempt emails made to and from Sheriff Chuck Korzenborn from July 28, 2015 to August 5, 2015.
(f) [sic] All non-exempt emails made to and from Deputy Sumner from July 28, 2015 to August 5, 2015.
KCSD responded on Aug. 7, 2015, stating that "due to the technical and size of your request, we will need additional time to answer your request completely. Once we gather your request, we will have a total amount that will be due at the time of delivery of your request."
Having received no further response, Fryman initiated this appeal on Aug. 20, 2015. Fryman argued that "the intent of KRS 61.872(5) is being subverted . . . . The Sheriff's Department fails to provide an expected date the records will be available for my inspection and for what reason it will take longer than the Act's required 3 day period thus a violation of KRS 61.872(5)." Fryman further argued that "Mr. Knochelmann [sic] statement of '. . . we will have a total amount that will be due at the time of delivery of your request' constitutes a subversion of the intent of the Open Records Act, short of denial of inspection . . . since I requested to inspect the records in person and at my option receive copies." Fryman concluded by stating that "by failing to provide sufficient evidence and explanation for the extended time needed to provide documents responsive to my requests and impose a fee to inspect the documents once produced I believe the Sheriff's Department has subverted the intent of the Act short of denial."
KCSD responded to Fryman's appeal on Aug. 27, 2015. KCSD stated that "since the time of the request, the Kenton County Fiscal Court's IT department has been working to provide an estimated time frame during which it can respond to the request. There were several requests, and we will respond to each in turn." In response to Fryman's requests (a), (d) and (e), KCSD stated that "no such documents exist." Regarding request (b), KCSD stated that "no such documents exist as to the first part of the request. As to the second, see the response to (c) below." In response to request (c), KCSD stated:
The Kenton County IT department estimates that to search the current mailboxes of approximately 50 employees that it will take approximately 20 minutes each, for a total of 16.6 hours. IT estimates that to pull the backup tapes for the last 30 days for the 50 mailboxes to search for these terms that it will take approximately 95 days, based upon the labor required to manually access the deleted files and review. The Sheriff's Office estimates that it will then need additional time to review each email, and that the time required will be dependent upon the number of results from the search. For current mailboxes, any responsive emails should be ready in 21 days. For a review of the backup emails, any responsive emails should be ready for review in 95 days, at the earliest. If the requestor desires to narrow down his search, then the time for response time would likewise reduce.
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Regarding request (f), KCSD stated that "there are 262 documents available in response to this request from a review of the current email mailbox. We estimate that any additional emails from the backup tapes . . . will be available in 21 days . . . plus review by staff for any required redactions. " In response to request (g) (identified as the second letter (f) in Fryman's request), KCSD stated "there is one document available in response to this request from a review of the current mailbox. We estimate that any additional emails from the backup tapes . . . will be available in 21 days . . . plus a review by staff for any required redactions. " Regarding Fryman's request for inspection as opposed to copies, KCSD stated that "of course Mr. Fryman is welcome to come to the office during normal business hours to review the documents available in response to his request. Mr. Knochelmann did not mean to imply otherwise, but as most of the requests he receives ARE requests for copies, he included the boilerplate language about payment."
KRS 61.880(1) provides that "each public agency, upon any request for records . . . shall determine within three (3) days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." KRS 61.872(5) is "the only provision in the Act that authorizes postponement of access to public records beyond three business days." 12-ORD-151. KRS 61.872(5) 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.
Although KCSD responded within three business days, it did not give a detailed explanation of the cause for further delay, stating only that "due to the technical and size of your request, we will need additional time." KRS 61.872(5) "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmonson v. Alig, 926 S.W.2d 856, 858 (Ky. Ct. App. 1996). "A 'limited and perfunctory response,' however, does not 'even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." 15-ORD-097. KCSD also did not specify the place, time, and earliest date on which the public records will be available for inspection until after Fryman appealed. In failing to provide a detailed explanation of the cause for further delay and the place, time, and earliest date on which the public record will be available for inspection, KCSD committed a procedural violation of the Open Records Act.
Fryman argues that KCSD is subverting the intent of the Open Records Act short of denial of inspection by unreasonable delays and attempts to impose excessive fees. KRS 61.880(4) provides that "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." Although KCSD failed to properly respond to Fryman's request initially, it has now provided a detailed response and estimation of time for when the records will be available. "A determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 03-ORD-050. Regarding "broadly worded requests for 'all email' . . . applicants submitting requests cannot reasonably expect agencies to which these requests are directed to produce all responsive records within the three day deadline. Applicants are therefore . . . to expect reasonable delays in records production." 12-ORD-097 n. 4. The grounds that KCSD has provided for the difficulty of retrieving some of the records, specifically, reviewing the emails of approximately fifty employees and going through backup tapes, in this context provide a reasonable time for inspection. See, e.g ., 14-ORD-024 (agency provided justification for eighty-one day delay); 12-ORD-097 (agency provided justification for six-month delay). KCSD has made some documents available for inspection, and has stated when others will be available. On these particular facts, we do not find that KCSD has subverted the intent of the Open Records Act short of denial of inspection by its delays in this matter.
Concerning Fryman's allegation that KCSD subverted the intent of the Open Records Act by attempting to impose an excessive fee, KCSD stated that "we will have a total amount that will be due at the time of delivery of your request," while Fryman had requested to inspect records rather than receive copies. "A public agency cannot 'assess the requester any charge for exercising the clearly defined right to inspect public records. '" 07-ORD-013. However, KCSD did not attempt to impose any specific fee, and its statement appears to be an inadvertent inclusion of boilerplate language rather than an attempt to subvert the intent of the Open Records Act. Accordingly, we do not find that KCSD has subverted the intent of the Open Records Act short of denial of inspection by including a mistaken reference to an unspecified fee in response to a request for inspection.
In summary, KCSD committed a procedural violation of the Open Records Act in failing to specify the reason for the delay and provide a date, place and time when the records would be available in its response. KCSD did not subvert the intent of the Open Records Act short of denial of inspection through unreasonable delays or a mistaken general reference to copying fees.
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 proceedings.
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