Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Bowling Green Police Department ("BGPD") violated the Open Records Act in its disposition of five requests for widely varied police department records. For the reasons set forth below, we find that BGPD did not subvert the intent of the Act, but committed procedural errors in responding to the request and must provide the earliest date, time, and place when records will be available.
Earl Henderson appeals BGPD's response to five open records requests he made on May 8, 2017. The requests are for widely varied records 1 ranging from policies and procedures to budget documents to calls and incidents at numerous locations, etc. BGPD responded to the five requests by letter dated May 15, 2017, and stated that, "due to the extensive amount of records requested, and the research needed to process your requests, it could (potentially) take up to a year to fulfill your requests." BGPD also stated that it would prioritize the requests based on simplicity and amount of time needed to process each request and that, while some of the requests might only take a few days to fulfill, the request for complete investigative files of seven homicide cases would take "numerous hours to process."
Mr. Henderson appealed BGPD's response on the basis that "all of their records being in electronic format and can be easily queried and downloaded or printed." Mr. Henderson believes that the statement (that it could take up to a year to fulfill the request) was to discourage him from submitting future requests because he is a journalist for Bowling Green True Crime .
H. Eugene Harmon, City Attorney, City of Bowling Green, responded on behalf of BGPD. Mr. Harmon first explained that Mr. Henderson had made an open records request on February 9, 2017, for computer assisted dispatching notes, reporting documents, uniform citations, 911 and communications center phone recordings, and photographic and videographic evidence for seven death cases from 2008, 2011, 2013 (3 cases), 2014 and 2015. "Obviously each of these files contain hundreds of pages plus videos, photos and recordings. " Mr. Harmon related that Mr. Henderson had also made another open records request on May 8, 2017, "for numerous documents for damaged, lost, and/or stolen police equipment going back to 2000 plus other records."
Mr. Harmon provided a statement from Jennifer Edwards, Administrative Services Supervisor, Records Division, BGPD, in which she explained the difficulties she faces in producing the records requested by Mr. Henderson. She related that she receives approximately fifty open records requests per month, but since February, Mr. Henderson alone has submitted "around twenty open records requests." "Prior to February, I would spend around two hours per day processing open records request. Since Mr. Henderson submitted his request, I have spent approximately five to six hours a day processing his requests, along with all other citizen requests." She explained that "each case file contains hundreds of pages" and that "personal information and juvenile information must be redacted. " In one case, most of the witnesses were juveniles and "all of their information had to be redacted . . ." She related that digital recordings had to be redacted. She also received open records requests for two other cases during this time and each of those cases, along with Mr. Henderson's requests for case files, "contain over twenty CD's, including pictures, interviews and walk through videos. We have one employee who was hired to be able to make digital redactions . . . In January of 2017, she submitted 4.3 hours as the total number of hours working on digital redaction. Her total for March (to give representation of a full month of processing Mr. Henderson's request) was 131.84 hours." The redacted digital records then have to be reviewed by Ms. Edwards and then Lt. Col. Wiles. Ms. Edwards stated that "outside of the Records chain of command, the Evidence Division has spent approximately five hours processing each murder case Mr. Henderson has requested." She also stated that Mr. Henderson does not purchase all items included in his request, but that he reviews what has been prepared and that the BGPD provides a cadet to monitor Mr. Henderson while he reviews the prepared records. There is additional work to separate out the records he wants to purchase from those he doesn't purchase. Ms. Edwards related that she is changing positions and that with the changes in personnel, and in anticipation of more requests from Mr. Henderson, BGPD "wanted to ensure sufficient amount of time available to complete each of his requests." In closing his response to the appeal, Mr. Harmon stated, "I also expect that the records [Mr. Henderson] has requested will be available long before a year, but at the same time he needs to consider that the constant requesting of additional broad based records requests will have to result in delays in producing those records."
KRS 61.872(5) requires that when production of the requested records will extend beyond three business days, a detailed explanation of the cause must be "given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " We find that the initial response, by Ms. Edwards, to the five requests, procedurally violated KRS 61.872(5) by failing to provide a detailed explanation of the reason for the delay, and the place, time, and earliest date certain when the records would be available, and did not specifically cite KRS 61.872(5) as the basis for delay. On appeal, Mr. Harmon did provide a detailed explanation for the delay in providing the records.
Turning to Mr. Henderson's specific complaint, his appeal implicitly invokes KRS 61.880(4), 2 which allows a person to complain to this office if he or she feels the intent of the Open Records Act is being subverted by an agency, short of denial of inspection. We are asked to determine if the time period of one year to fully respond to numerous open requests is a subversion of the Act. "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. Based on an adequate showing by the agency, we have in the past found justification for delays as long as 81 days, 14-ORD-024, and in one extreme case, six months. 12-ORD-097. In 12-ORD-097, we found that a six-month delay represented the "outer most limit of acceptable delay" 3 in providing requested records. Although that case involved 22,000 records, the analysis involved in reaching the decision required us to review the facts of the case, as we do here, even though the records involved here are not so numerous.
In contrast to Mr. Henderson's belief that his records request can be filled easily and within a few days, Ms. Edwards has described the time-consuming effort required to make the records available for him. That effort has required her to spend five to six hours per day on filling open records requests where she would typically spend two hours per day on average on that activity. Also, the person making redactions of digital records has had her workload increased from 4.3 hours per month to 131.84 hours for March. Ms. Henderson attributes most of these increases to Mr. Henderson's requests and she believes that he will continue to make additional time-consuming requests. BGPD has thus provided a reasonable explanation for delaying records production beyond the three-day period, but Mr. Harmon stated that he does not expect production to take an entire year.
In OAG 85-85, we stated, ". . . in our opinion, part of the legislative intent in the enactment of the Open Records Act was that public employees should exercise patience and be long suffering in making public records available for public inspection, " and "every legitimate request, not covered by a statutory exemption, should be complied with as quickly and courteously as possible. The availability of the records should be subject to no more restrictions than are necessary to protect the records and avoid unduly disrupting the agency's operations." BGPD expressly did not claim that Mr. Henderson's requests were meant to disrupt the agency's operation, 4 nor denied Mr. Henderson's requests outright. Given the burdens placed on the agency by Mr. Henderson's requests, a delay in production is reasonable, but a delay of a year is rejected as being unreasonable on the facts presented. In light of the explanations provided by the agency, we do not find that BGPD subverted the intent of the Open Records Act, but BGPD must promptly comply with KRS 61.872(5) and notify Mr. Henderson of the place, time, and earliest date certain that the requested records will be available for inspection.
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 must 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 The records requested range from policies/guidelines/procedures/memos/related documents for patrol officers/K9 officers/detectives/advanced crime scene processors/shift supervisors/critical response team/animal control officers/parking enforcement/cadets/explorers/ records division and dispatch, to budget/finance documents from 2010 to 2016 showing proposed police budget and monthly expenses of said years, to "A,B, and C shift schedules for whole months . . . showing how many officers were on C shift for a certain date in June . . ." to "open records requests submitted to BGPD between June 1st 2016 and April 30th 2017 . . . " to "list of calls and incidents at" twenty different businesses and addresses from 2014 to 2016, or 2010 to 2016.
2 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."
3 We emphasize that the "outer most limit of acceptable delay" mentioned in 12-ORD-097 does not adopt a rule of general application vis-a-vis "timely access." See, OAG 92-117. Each open records appeal is reviewed under its unique set of facts for the determination of whether the agency's response violates the Act.
4 KRS 61.872(6) provides: If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence."