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 Louisville Metro Government ("LMG") violated the Kentucky Open Records Act, or subverted the intent of the Act short of a denial of inspection within the meaning of KRS 61.880(4), in its disposition of four open records requests submitted by Tom Stone, dated October 25 and 27, 2018, and November 21, 2018. For the reasons that follow, we find that LMG did not make a timely written disposition of the request and subverted the intent of the Act.
Mr. Stone's first request, dated October 25, 2018, and numbered 9613 by LMG, was for "ALL RECORDS generated by the [LMG Code Enforcement and Property Maintenance Division] for the addresses at 14001, 14003, 14005, Old Station Rd, from June 9, 2005 through October 25, 2018," including complaints and inspection records; e-mails; all records generated by a Ms. Cavello and a Ms. Witt; records concerning a discrimination complaint by Mr. Stone; employee files of Ms. Witt and her e-mails since July 1, 2018; and "all records including emails" containing Mr. Stone's name. His second request (October 25, 2018; # 9614 ) asked for all records "relied upon" by the same division to determine the existence of a certain code requirement regarding emergency doors. His third request (October 27, 2018; # 9621 ) sought all records of a "Citation to Chenoweth Woods [Apartments]" at the addresses listed in his first request. His fourth request (November 21, 2018; # 9816 ) was for "all records associated with the approval of property identification" at the same addresses, including "phone logs, emails, etc between Franklin Assets, Chenoweth Woods and all employees" of the same division.
As to the first two requests, submitted on October 25, 2018, LMG failed to issue any sort of written response until November 1, 2018. Accordingly, as to those requests, we find a procedural violation of KRS 61.880(1), which requires a public agency to issue a written disposition of a request within three days of receipt, excluding weekends and legal holidays. LMG e-mailed replies to the third and fourth requests on November 1 and 27, 2018, respectively, which, although legally insufficient under KRS 61.880(1), were within the statutory time limit of three business days.
For each of its written replies, LMG used the same boilerplate language:
The public records you seek are in active use, in storage or not otherwise readily available. The records are not available because the request involves multiple agencies and a legal review will be necessary. Please expect our response on or before close of business Thursday, January 3, 2019.
The only variation in this language was in the response to request 9613, where LMG stated that "the request involves multiple agencies, archived records , and a legal review will be necessary." (Emphasis added.) This office received Mr. Stone's appeal of all four open records matters on December 4, 2018.
KRS 61.880(1) requires that a public agency make not merely a perfunctory acknowledgment, but a substantive disposition, of a request for public records within three business days. The only statutory exception to this requirement is contained in 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.
(Emphasis added.) An agency response invoking KRS 61.872(5) must do significantly more by way of explanation than "parrot[ing], without citing, the language of the statute." 09-ORD-007. Instead of merely reciting that records are "in active use, in storage, or not otherwise available," a public agency must "identify which of these permissible reasons for delay appl[y], if any, or to what extent." 16-ORD-206. LMG failed to give this information.
By way of a "detailed explanation of the cause . . . for further delay," in three out of four cases, LMG merely stated that "the request involves multiple agencies and a legal review will be necessary." Although Mr. Stone addressed his requests solely to the Code Enforcement and Property Maintenance Division, LMG argues on appeal that one of the four requests, # 9613, includes employment records and therefore "requires coordination with [the] Human Resources Department." LMG does not explain, however, why the mere involvement of Human Resources in request 9613 would make the records "not otherwise available."
Nor does LMG suggest that Mr. Stone's other three requests (9614, 9621, 9816) involved "multiple agencies" in any way. The use of "boilerplate language that was in no way correlated to [the] particular request . . . is an unacceptable practice that violates the express requirements of the Act and, in particular, the requirement of timely production of public records codified at KRS 61.880(1)." 11-ORD-135.
Furthermore, with regard to LMG's assertion that "a legal review will be necessary," we note that "[t]he need to [review and] redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request [and] does not, in and of itself, constitute a reason for additional delay." 15-ORD-029. We therefore find that LMG's representations as to requests 9614, 9621, and 9816 did not amount to a "detailed explanation" to justify the delay as required by KRS 61.872(5).
In its response to Mr. Stone's first request, # 9613, LMG provided the additional information that "the request involves . . . archived records." This, by itself, does not constitute a "detailed explanation," since it "sets forth neither the volume of records involved nor explains, in detail, the problems associated with retrieving the records implicated by the request that would support a [two-month] delay in providing the requested records." 1 02-ORD-217. Accordingly, we find that LMG violated the Open Records Act by failing to comply with KRS 61.872(5) in its attempt to justify further delay.
Furthermore, we find that LMG subverted the intent of the Act, short of denial of inspection, within the meaning of KRS 61.880(4), by using "repetitive responses composed of boilerplate language to postpone Appellant's access to public records. " 18-ORD-216. The language LMG employed in responding to these requests was, in fact, identical to the boilerplate recitations it used to subvert the Act in 18-ORD-216, "stating the record was in active use, in storage or not otherwise readily available, and involved multiple agencies necessitating legal review." We found in 18-ORD-216 that these "vague responses not only caused Appellant to wait for access to public records beyond the time permitted by KRS 61.880(1), but also denied Appellant an adequate explanation of the cause for delay and, thereby, denied him a meaningful opportunity to challenge the delays on appeal." Id.
LMG's pattern of employing opaque boilerplate language to effect delay is further documented in 17-ORD-181 and 17-ORD-082. ( See also 18-ORD-100 and 17-ORD-110, in which LMG admitted on appeal that its initial responses lacked the detailed explanation required by KRS 61.872(5).) As in 18-ORD-216, in this case we see "no evidence that LMG has acted to correct the issues we have identified, or improve the process for responding to requests." Thus, we conclude that LMG's boilerplate responses to Mr. Stone's requests subverted the intent of the Open Records Act, short of denial of inspection, within the meaning of KRS 61.880(4).
On appeal, by way of explaining its delay, LMG asserts that its "more recent records are maintained by the agency in an electronic portal," but older ones are not and therefore require "more time" to locate. This representation (which was not included in its responses to Mr. Stone) is not, by itself, sufficient to justify a delay of more than two months in producing records, in light of the public agency's burden of proof under KRS 61.880(2)(c). An agency's "inefficiency in its own internal record keeping system" cannot be allowed "to thwart an otherwise an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008).
LMG also states, with regard to request 9816, that the requested records cover a period of 35 years, and therefore argues that most of the records "would be archived, or perhaps destroyed according to the record retention schedule." (Emphasis added.) Although LMG did not mention in its response to request 9816 that any responsive records were archived, retrieval of records from archives is certainly a permissible basis for some delay beyond three business days under KRS 61.872(5). In this case, however, LMG has not provided sufficient detail to meet its burden of establishing that the retrieval process itself, the volume of records involved, or any other factor would warrant a delay of over two months. See 02-ORD-217, supra .
Furthermore, the fact that records have "perhaps" been destroyed pursuant to a retention schedule would tend to reduce , rather than increase, the burden on LMG in responding to a request. If, on the other hand, LMG failed to destroy its records on schedule, "any resulting burden would have been of [its] own making." 18-ORD-211; see also 12-ORD-097 ("[h]ad [agency] staff engaged in proper records management, . . . the volume of responsive records, and corresponding burden to produce them for inspection under the Open Records Act, would have been significantly decreased"). In either case, however, LMG has not adequately explained why, as of December 14, 2018 (the date of its response to this appeal), it still has not determined whether any responsive records have been destroyed. This constitutes a further failure by LMG to justify its delay.
LMG additionally argues that its need to review records and make any necessary redactions, per se , renders the records "not otherwise available" within the meaning of KRS 61.872(5). To the contrary, we have consistently held, as quoted above, that "[t]he need to [review and] redact records . . . is an ordinary part of fulfilling an open records request [and] does not, in and of itself, constitute a reason for additional delay." 15-ORD-029; see also 10-ORD-038 ("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"). LMG's argument is therefore untenable.
LMG also argues that some of Mr. Stone's requests, in whole or in part, are not entirely clear on their face and require LMG "to discuss internally" what records he is requesting. Yet such discussions, too, are an ordinary part of fulfilling an open records request and are not an independent basis for delay under the Act. LMG further asserts "[i]t could be argued" that those ambiguous portions of the requests are improper because they do not "precisely describe" the records as required by KRS 61.872(3)(b); however, it refrains from actually making that argument, which accordingly we shall not address. While it is creditable that LMG has not chosen to deny Mr. Stone's requests, it remains unclear how the mere need for such "internal discussion" warrants a delay of all requests until January 3, 2019. Certainly, LMG was free to request a clarification from Mr. Stone, if needed, 2 but it did not do so.
Citing three other open records requests made by Mr. Stone, which are not included in this appeal, LMG asserts that Mr. Stone has a "personal vendetta" against Chenoweth Woods Apartments or "a bone to pick" with the Code Enforcement and Property Maintenance Division, and for that reason "has chosen to bombard" LMG with open records requests. LMG does not, however, argue that Mr. Stone's requests pose an "unreasonable burden in producing public records" or "are intended to disrupt other essential functions of the public agency" within the meaning of KRS 61.872(6). If LMG should choose to make that argument in any future appeal, it must sustain any denial of records by clear and convincing evidence. Id.
Next, LMG argues that it has other open records requests to fulfill besides Mr. Stone's, and that "[t]he volume of unrelated requests is a real and relevant factor" in determining the timeliness of its response. We find no merit in this argument. "It is incumbent on [a public agency] to make proper provision for the uninterrupted processing of open records requests." 98-ORD-161. "Nor do 'irrelevant factors, including the volume and nature of unrelated requests,' constitute legitimate reasons for delay." 17-ORD-082 (emphasis added) (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. Accordingly, the fact that other individuals have made open records requests to LMG is irrelevant to this appeal. 3
LMG additionally alludes to the fact that Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575 (Ky. 1994), allows a person who possesses privacy rights in public records to file suit to block the release of those records, and that a "reasonable delay" is permissible to allow an agency to notify such parties of the records' impending release. While this is true, it is irrelevant to this appeal, as LMG does not allege that any such parties exist in this case or that it intends to give any such notice.
In conclusion, LMG has established that at least some records requested by Mr. Stone in # 9613 and # 9816 are likely to have been archived, so as to require more time to retrieve than the three business days provided by KRS 61.880(1). It has not, however, met its burden of sustaining the delay of all four requests until January 3, 2019.
This is not to imply that such a burden could never be met. In 92-ORD-117, we found that a delay of 21 days was warranted by extraordinary circumstances. Specifically, the Department for Social Services had established that requests for records maintained in 123 local offices across the Commonwealth must be processed by and through the Department, which must then locate the records and retrieve them from the appropriate county office before reviewing and releasing them for inspection. Furthermore, the scope of the request was extremely broad ("any and all records in the possession of the [then] Cabinet for Human Resources upon which [requester's client's] name appears or which may concern her") and the requester's client was the subject of an ongoing investigation by the Department which must be concluded before the Department could obtain and review the records. We therefore found that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-`-vis 'timely access.'" The facts in this appeal, in contrast to 92-ORD-117, do not include an ongoing active investigation or a request implicating the records of 123 local offices.
Similarly, due to "extreme circumstances presented" in 12-ORD-097, we found that a public library had justified a six-month delay where the library director and legal counsel were required to review 22,117 of the director's e-mails for exempt material. In this case, LMG has not indicated the existence of "a vast number of records" comparable to the number at issue in 12-ORD-097. Indeed, there is no indication that LMG has yet ascertained how many records are responsive to the request; rather, LMG admits that Mr. Stone's requests are still "in the queue" behind others.
"Until such time as the legislature acts to afford relief to agencies from the requirement of disclosure of public records within three business days of receipt of a request, we are bound to strictly construe [KRS 61.880(1) and 61.872(5)], along with the other requirements found in the Open Records Law." 01-ORD-140; 12-ORD-097. Accordingly, we find that LMG failed to provide a timely disposition of Mr. Stone's requests under KRS 61.880(1), failed to give an adequate explanation under KRS 61.872(5), failed on appeal to justify its delay in processing Mr. Stone's requests, and subverted the intent of the Open Records Act by excessive delay and inappropriate use of boilerplate language.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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