Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Pike County Clerk violated the Kentucky Open Records Act in the disposition of three separate requests for records. The record on appeal substantiates the requester's claim that the Pike County Clerk failed to issue timely responses to the requests, per KRS 61.880(1).
Roger Ford sent a request for records to the Pike County Clerk ("Clerk") on August 16, 2018, for six categories of "financial and accounting information." Mr. Ford filed an appeal with this office regarding this request and we issued a decision, 18-ORD-188, on October 3, 2018, finding that the Clerk failed to either comply with all requirements of KRS 61.880(1) upon receipt of request, or properly invoke KRS 61.872(5) by citing that provision and providing a legitimate detailed explanation of the cause for delay and the specific date when the records would be available.
Along with the appeal of the August 16, 2018, request, Mr. Ford also appealed three other requests he made to the Clerk but which, in 18-ORD-188, we determined had not been perfected and made no finding as to whether the Clerk had violated the Act regarding those requests. Jim Vanover, attorney, filed an appeal on behalf of Mr. Ford dated October 23, 2018, and clarified the facts pertaining to the delivery and response by the Clerk of those three requests. We address the Clerk's disposition of those requests in this decision.
Mr. Ford sent a request for records to the Clerk on August 20, 2018 ("first request"), seeking certain "financial and accounting information," as outlined in forty-eight (48) separate categories of records. On August 22, 2018, Mr. Ford asked for electronic copies of all e-mails and written correspondence to or from the Clerk since January 1, 2015 ("second request"). On August 31, 2018 ("third request"), Mr. Ford requested salary and payroll information for all salaried, hourly, and contract employees from fiscal year 2014-15 to the present. Mr. Ford stated that the first request was received on August 21, 2018, by the Clerk "as per signature from FedEx." According to Mr. Ford, the second and third requests were delivered via FedEx on August 23, and September 4, 2018, respectively.
In the appeal dated October 23, 2018, Mr. Vanover stated that, with regard to the requests of August 20, August 22, and August 31, Mr. Ford received no responses from the Clerk "within the time period specified by the Open Records Act. " The appeal included a copy of an email string from the Clerk which she had produced in response to the earlier appeal. That email string shows that the Clerk sent emails responding to each of the three requests involved in this appeal, but that the responses were sent to the Clerk's own email address, but not to Mr. Ford's email address . 1 In relevant part, the Clerk's response to this appeal merely stated: "There may be an error with e-mails. "
The email response, dated August 28, 2018, from the Clerk to the requests of August 20 and 22 was that she had received the requests and "I will contact you upon completion with information on price and arrangement for pick up." In response to the August 31 request, the September 6, 2018, email from the Clerk stated that she had received the request and would again contact Mr. Ford "upon completion with information on price and arrangement for pick up." In an email dated September 13, 2018, which was again sent to her own email address but not to Mr. Ford's email address, the Clerk stated that she had been notified of the "complaint" Mr. Ford filed with this office and was sending the response (with the earlier emails) by certified mail. The Clerk also stated: "Please know that I am working my hardest to accommodate your requests and will contact you upon completion with information on price and arrangement for pick up."
In response to the notification of appeal, the Clerk provided a photocopy to this office of an envelope sent by certified mail to Mr. Ford at the postal address included in his records request. The stamp on the envelope states: "Return to Sender," "Unclaimed," and "Unable to Forward." The envelope reflects that it was mailed on October 3, 2018, and the postal stamp of non-delivery is dated October 28, 2018. Without further facts from the Clerk to explain the contents of this envelope, we presume that the letter notified Mr. Ford that records responsive to his requests were ready to be picked up.
Analysis : KRS 61.880(1) requires that a public agency make a final disposition of a request for public records within three days of receipt, excluding weekends and legal holidays. The Clerk's attempted emails to Mr. Ford did not discharge this obligation by merely stating that his requests would be fulfilled at some indeterminate time. 01-ORD-140. Nor did the Clerk specify a reason for the 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.) Insofar as the Clerk failed to either provide Mr. Ford with access to all existing responsive documents within the statutory timeframe, or cite the applicable statutory exception(s) and explain how it applied to any records being withheld in writing per KRS 61.880(1), she violated the Act for each of the three requests involved in this appeal.
In the alternative, the Clerk failed to expressly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), and to 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 for each of the three requests. See 12-ORD-151; 13-ORD-035. Absent from the initial and supplemental responses by the Clerk is any reference to KRS 61.872(5); also lacking is the statutorily required explanation of the cause for delay. If any of the records being sought were "in active use, in storage or not otherwise available," the Clerk failed to specify which of these permissible reasons for delay applied or to what extent. Moreover, "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; 07-ORD-158 (response that agency was "in the process of filling" the request and expected to fill it "within the next two weeks" did not suffice); 08-ORD-006 (agency's response advising that it would be "a couple of weeks" before it could "get the copies together" without further explanation violated KRS 61.872(5)). Since no place, time, or date, certain or uncertain, has been designated, the Clerk failed to satisfy the requirements of KRS 61.872(5).
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.
Footnotes
Footnotes