Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Burgin violated the Open Records Act in the disposition of James Caldwell's December 28, 2017, request for the following:
1) During the 11/14/17 council meeting Mayor Hensley stated he disposed of [sic] 250 water meters by throwing them away. Please provide the minutes from any meeting at which these meters were declared surplus to needs and any documentation authorizing their disposal, destruction or sale.
2) During the 11/14/17 council meeting Chief Rucker [s]tated that he had conducted an interview for the [part-time] police position despite the fact that the position had not been authorized at that time. Please identify the person interviewed.
3) Please provide all correspondence between the City of Burgin and any state agency regarding the withholding of funds for failure to comply with audit procedures. Include correspondence stating we are now in compliance and releasing those funds if available.
4) Please provide a complete list of checks issued between 11/1/17 and 12/28/17 by account[.]
5) Please provide vendor transaction lists for the same period.
In a timely but otherwise deficient written response, City Clerk Michelle Russell advised Mr. Caldwell that, "[d]ue to the first of the month work and getting ready for the council meeting, I am not going to be able to get your latest open records request ready. I will have it ready for you by January 31, 2018." On appeal, Mr. Caldwell noted, "Item 5 is actually part of the council meeting paperwork. All that would be required is printing an extra copy. Item 4 is a computer report easily printed. Item 1 was discussed at the previous council meeting and again should be readily available." However, "Item 3 might require a little research but the clerk announced compliance at a recent council meeting. The documentation should be close to the surface." 1 In any event, Mr. Caldwell believed a delay of thirty-four (34) days to provide all existing documents responsive to his request was excessive.
Upon receiving notification of Mr. Caldwell's appeal from this office, the City Clerk advised that she did not deny his December 28, 2017, request; instead, she forwarded a timely response to him via certified mail advising that "due to the first of the month work (paying invoices, water report, [Federal] and State tax payments, preparing for the Council meeting, running all the reports for the Council, balancing bank statements, etc. )," that she would have the records available on January 31, 2018. "In addition to what I have already listed," the Clerk observed, "I have already listed the quarterly reports and the end of the year duties such as [W2s] and [1099s] must be prepared." Lastly, the Clerk noted that she is paid to work thirty (30) hours per week and that she does the best she can. Although the Clerk also noted the number of requests that Mr. Caldwell has made (25), and further indicated that she believes he is attempting to harass the City, she did not cite any exception to justify a denial nor did she cite any of the permissible reasons for delay listed at KRS 61.872(5).
The City's response(s) satisfied neither KRS 61.880(1) nor KRS 61.872(5). A public agency such as the City is required to comply with substantive and procedural requirements of the Open Records Act regardless of the requester's identity or purpose in requesting access to records. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to written requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." (Emphasis added.) A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. The Attorney General has frequently noted this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3.
In construing KRS 61.880(1), the Attorney General has also consistently observed:
Contrary to [the agency's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3 . . . .
01-ORD-140, pp. 3-4; 06-ORD-147; 07-ORD-179; 10-ORD-201; 14-ORD-026. As in 01-ORD-140, this office must conclude that in failing to produce any existing responsive documents within three business days, the agency violated KRS 61.880(1) as it did not invoke KRS 61.872(5) or satisfy the requirements of that provision.
Although the City Clerk issued a written response to Mr. Caldwell's December 28, 2017, request within three business days per KRS 61.880(1), that response was deficient insofar as the City failed to either provide Mr. Caldwell with access to all existing responsive documents within that period of time or cite the applicable statutory exception(s) and explain how it applied to any records (or portions thereof) being withheld. The City failed, in the alternative, to properly invoke KRS 61.872(5) by citing that statutorily recognized exception to KRS 61.880(1), and providing a legitimate detailed explanation of the cause for delay in producing any existing responsive documents in addition to a specific date when such documents would be made available. See 12-ORD-151; 13-ORD-035. Noticeably absent from each response by the City is any reference to KRS 61.872(5). Equally lacking is the statutorily required explanation of the cause for delay. 2 See 08-ORD-021.
The City is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests made under the Open Records Act. Notwithstanding the challenges impeding the ability of the City to comply in this instance, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"); 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff"). While a minimal extension of time may have been justified on the facts presented, it was incumbent on the City, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. A public agency response advising that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Open Records Act. 96-ORD-238, p. 2. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act]," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 682 (Ky. 1992), and the recognition that "the value of information is partly a function of time." Fiduccia v. U.S. Dep't of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); 01-ORD-140; 17-ORD-201.
In the absence of a legitimate detailed explanation by the City of the cause for delaying access until January 31, 2018, this office must conclude that Mr. Caldwell has not received "timely access" to any records the City eventually provides. The City's delay subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), as the records were apparently not "in active use, in storage or not otherwise available." See 10-ORD-138 (Cabinet for Health and Family Services, "without adequate explanation for the delay pursuant to KRS 61.872(5)," subverted the intent of the Act in delaying access to personnel file of employee for more than two months); 13-ORD-004 (Paintsville Utilities subverted the intent of the Act in delaying access to monthly invoices for insurance premiums for a ten-year period for a period of nine and one-half weeks); 13-ORD-053; 14-ORD-040. Because the City has not, as of yet, denied access to any records, there is no basis upon which to find it committed a substantive violation of the Act. 16-ORD-189.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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