Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Kentucky Open Records Act in its disposition of Kate Howard's July 26, 2017, request for "[a]ll emails stored or deleted, sent or received by Ryan McDaniel between June 11, 2016 and Sept. 30, 2016 containing any of the following words: Ramsey, Kathleen, Smith, drive, computer, or erase." For the reasons that follow, we find that the University did not make a timely written disposition of the request.
Ms. Howard received an automatic e-mail reply from University records custodian Sherri Pawson on the date of her request stating: "I am away on vacation until July 31st. I will respond as soon as possible." The first actual acknowledgment of Ms. Howard's request came on August 7, 2017, when Ms. Howard reminded Ms. Pawson she had still received no response and Ms. Pawson replied: "I have asked the appropriate university officials to gather all responsive records and send them to me for review. I expect to have a response for you early next week." Having received nothing further, Ms. Howard initiated this appeal via fax on August 25, 2017, asserting: "It has now been 22 business days and I have not received any explanation of the delay, any records or any additional correspondence. "
That same day, Ms. Pawson e-mailed Ms. Howard, stating:
I am currently reviewing records to determine release under the statute but due to the volume of records it is taking a significant amount of time to complete the work. I expect I'll be ready to respond the week by [ sic ] Sept 4th. I'd appreciate it if you could wait to contact the Attorney General's Office until you have a chance to review the records.
Then, on September 1, 2017, Ms. Pawson responded to this appeal on behalf of the University, as follows:
I was away on vacation at the time Ms. Howard's request was received. Upon my return, I began a search for the responsive documents and acknowledged the request. Ms. Howard followed up this week as to the status and I indicated I was still reviewing records and expect to have a response next week. Due to the nature and volume of the records and the quantity of other pending requests I need additional time to review these records. I was deficient in not providing Ms. Howard updates as to my progress.
There is no indication in the record that any further correspondence, or production of records, has taken place.
KRS 61.880(1) requires that a public agency make a disposition of a request for public records within three days, excluding weekends and legal holidays. The University did not discharge this obligation "by notifying [Ms. Howard] that [her] request would be honored sometime after the return of its custodian of records from vacation. " 01-ORD-140. As we stated in 98-ORD-161:
[T]he Attorney General has recognized that in the event the official custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." [94-ORD-86.] The three day statutory response time is not tolled by the absence of the agency's records custodian. It is incumbent on the University of Louisville to make proper provision for the uninterrupted processing of open records requests.
See also 96-ORD-185 (the Open Records Act "presumes the appointment of a records custodian [responsible for] the timely processing of open records requests, and in his absence, the appointment of an alternate to fulfill his duties"). "Nor do 'irrelevant factors, including the volume and nature of unrelated requests,' constitute legitimate reasons for delay." 17-ORD-082 (quoting 16-ORD-272). "It is to be expected that a public agency will, at times, have to deal with simultaneous open records requests from different parties." 17-ORD-128.
The University has articulated no sufficient reason for its delay in producing the requested records. Pursuant to KRS 61.872(5):
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.
(Emphasis added.) The University has not asserted that the records are "in active use, in storage, or not otherwise available." Only "vague and fragmentary information" was given ( cf. 16-ORD-205) though insubstantial utterances about the records' "nature and volume. " Neither this office nor Ms. Howard has been told what the "nature and volume" might be. "While a reasonable delay might be acceptable upon a proper showing, we find the delays in this case to be unreasonable based on the minimal showing made by the University." 15-ORD-181.
Lastly, "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38 (emphasis in original). As no date certain has been given, the University has failed to satisfy the conditions of KRS 61.872(5). Accordingly, we find the continuing delay to constitute a violation of the Open Records Act.
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 proceedings.