Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Summary : City of Worthington violated the Open Records Act in failing to either comply with all requirements of KRS 61.880(1), or properly invoke KRS 61.872(5), the only exception to KRS 61.880(1), by providing a legitimate detailed explanation of the cause for delaying access to existing responsive documents and the specific date when the records would be available.
Open Records Decision
The question presented in this appeal is whether the City of Worthington violated the Open Records Act, or subverted the intent of the Act within the meaning of KRS 61.880(4), in the disposition of Worthington City Commissioner Robert Stonum's Friday, June 22, 2018, request for "PDF copies of all ' Officially Approved Invoices ' for Cut-N-It Lawn Care Service LLC during" the fiscal years of 2014-2018. Commissioner Stonum indicated that receipt of the requested copies via his official City Commissioner e-mail account was "acceptable and preferred." In a timely response per KRS 61.880(1), City Clerk Betty Coleman confirmed receipt of Commissioner Stonum's request and indicated that she would "send requested information as soon as invoices are available, and as soon as possible." By e-mail dated June 28, 2018, Ms. Coleman stated without further comment, "Attached is the information requested. " Shortly thereafter, Commissioner Stonum confirmed receipt of the invoices for the 2018 Fiscal Year but inquired as to when he should anticipate receiving the invoices from the remaining fiscal years.
Having received no further information regarding the status of his request, Commissioner Stonum initiated this appeal by letter dated July 6, 2018. Commissioner Stonum stated that all of the requested invoices "should be readily available for public review, since these invoices are subject to the Department for Libraries and Archives Retention Schedule for Local Governments," 1 and because the City has not completed the statutorily mandated Financial Audit for the fiscal years of 2015-2017. Commissioner Stonum noted the Financial Audit for the 2014 Fiscal Year was not presented until the City Commission's June 19, 2018, meeting. On July 10, 2018, City Attorney Stephen A. Schwager faxed a copy of the Notification to Agency of Receipt of Open Records Appeal that he received from this office. Mr. Schwager stated on the Notification that invoices from July 1, 2016, through June 30, 2017, had been mailed to Commissioner Stonum and the City would mail the invoices from the preceding fiscal years weekly. "Albeit late," the City advised that Commissioner Stonum should receive all of the requested copies by "mid[- ]August."
On July 10, 2018, Ms. Coleman informed this office that she had provided Commissioner Stonum with copies of the requested invoices for the fiscal years of 2016-2017 and 2017-2018. Ms. Coleman acknowledged taking more than three days to send the records to Commissioner Stonum. She emphasized that she is a part-time employee and "[w]e are also right at the peak of the fiscal year where property owners are sending in tax payments with bills that must be processed first." Commissioner Stonum subsequently provided this office with a hard copy of Ms. Coleman's July 10, 2018, e-mail notifying him that she had attached the invoices for the fiscal year ending June 30, 2017. Ms. Coleman further indicated the "[a]dditional information requested [is] being [compiled] and will be sent as soon as possible/available."
The City, like any public agency, is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 10-ORD-199. Notwithstanding any challenges impeding the ability of the City to comply, 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 his absence); 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff"); 94-ORD-86; 15-ORD-174; 16-ORD-279; 17-ORD-105. Rather, 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; 17-ORD-201.
A public agency such as the City is required to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to 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." Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6; 01- ORD-140, p. 4; 06-ORD-147; 10-ORD-201; 11-ORD-035. The City violated the Act in failing to issue a timely written response and provide access to any existing responsive documents not protected from disclosure, as it did not expressly invoke KRS 61.872(5) or satisfy the requirements of that exception. See Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011)(agreeing with Attorney General that agency violated KRS 61.880(1) in failing to issue a written response within three business days and in failing to provide a written explanation for the inability to provide the records based, in that case, on their nonexistence); 13- ORD-052; 15-ORD-141; 16-ORD-210.
The City responded to Commissioner Stonum's request within three business days of receipt per KRS 61.880(1). Its response was otherwise deficient insofar as it failed to either provide Commissioner Stonum 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 being withheld in writing per KRS 61.880(1). The City failed, in the alternative, to expressly invoke KRS 61.872(5), 2 the statutorily recognized exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date when the documents would be available. See 12-ORD-151; 13-ORD-035; 15-ORD-174. Absent from the initial and supplemental responses by the City is any reference to KRS 61.872(5). Also lacking is the requisite detailed explanation of the cause for delay. If any of the records being sought were "in active use, in storage or not otherwise available," the City failed to specify which of these permissible reasons for delay applied, if any, or to what extent.
Vague reasons for the delay and estimates of how long the delay in making the records available will be, such as those provided in the City's initial and subsequent responses, have been deemed insufficient for purposes of complying with KRS 61.872(5), requiring a "detailed explanation" and the "place, time, and earliest date" when records will be available for inspection. 3 01-ORD- 38 ("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 . . ."); 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary"); 15-ORD-029 (merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause ? for further delay"); 02-ORD-217; 12-ORD-043; 13-ORD-168; 14-ORD-047.
Based upon the foregoing, this office finds that neither the initial nor the supplemental responses by the City contained the specificity envisioned by KRS 61.872(5), upon which it was implicitly relying in delaying access beyond the statutory period for a final response under KRS 61.880(1). Accordingly, the City violated the Act from a procedural standpoint. In the absence of a legitimate detailed explanation for delaying access, the Attorney General must conclude the City has not provided Commissioner Stonum with "timely access" to responsive documents it has provided (except for those disclosed on June 28) or agreed to provide; this unjustified delay subverts the intent of the Act within the meaning of KRS 61.880(4). 13-ORD-052, pp. 6-7; 16-ORD-188 (agency's response was not timely under KRS 61.880(1) nor did it satisfy the requirements of KRS 61.872(5)); 16-ORD-205. "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 Univ. 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); 10-ORD-199; 14-ORD-026. Because the City has not denied any portion of Commissioner Stonum's request, no basis exists upon which to find that a substantive violation has been committed.
Either party may appeal this decision may appeal it 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.
Footnotes
Footnotes
1 See Records Series L500, Banking Records File, on the Local Governments General Records Retention Schedule , which may contain, "Cancelled check and warrants, bank reconciliation, bank statement, check stubs, duplicate copies of checks and deposit ticket." The Retention and Disposition Instructions indicate to "Retain for three (3) years, then destroy after audit."
2 KRS 61.872(5) states:
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.
3 In addition, the need to identify and review documents alone does not constitute a sufficiently detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3