Opinion
Opinion By: Andy Beshear,Attorney General;Mitchel T. Denham,Assistant Deputy Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in its disposition of Brendan McCarthy's December 15, 2015, request, as Managing Editor for the Kentucky Center for Investigative Reporting, for "any/all requests issued by federal, state, or local law enforcement agencies to the University of Louisville for documents/materials from 1/1/2014 through present date" along with whatever was produced in response thereto. We find no substantive violation of the Act.
In 16-ORD-026 (copy attached), issued this same date, we ruled that KRS 61.878(1)(h) exempted from disclosure subpoenas issued during an ongoing investigation by a grand jury in a pre-indictment stage where the recipient of the subpoenas was cooperating with a law enforcement agency and the Commonwealth's Attorney had requested confidentiality for the subpoenas and records associated with them. We found that the likelihood of harm to the ongoing investigation satisfied the standards enunciated in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). In so ruling, we stated that the exemption extended also to the records produced in response to the subpoenas. Since this appeal relates to the same grand jury investigation at the same stage, we find that our decision in 16-ORD-026 controls the issues in the present appeal, and therefore adopt it as the basis of our decision herein. As such, we find that the subject matter of Mr. McCarthy's request is exempted by KRS 61.878(1)(h) in this instance at this time. 1
We note, however, that the University did not comply with the requirement of KRS 61.880(1) to issue a disposition of an open records request within three (3) days after receipt of the request, excluding Saturdays, Sundays, and legal holidays. According to the last communication in the record, the University received Mr. McCarthy's request on December 17, 2015, and as of January 29, 2016, still had not fully responded. The only explanation for this delay in excess of 43 calendar days was that the University was closed from December 24, 2015, until January 4, 2016 (11 calendar days). This is inadequate under KRS 61.872(5), which 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.
The University does not allege that the records were "in active use, in storage or not otherwise available"; nor did it provide "a detailed explanation of the cause . . . for further delay." Therefore, we necessarily find that the University committed a procedural violation of KRS 61.880(1) by failing to issue a timely response.
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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