Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Henderson City-County Airport Board ("Board") violated the Open Records Act in its disposition of Patricia Kushino's request for copies of hangar lease agreements. We find that the Board violated the Act for the reasons set forth below.
By email dated Saturday, November 10, 2018, Patricia Kushino ("Appellant") requested a copy of "all signed hangar lease agreements at the Henderson City County Airport with a lease in effect during any part of the timeframe of January 1, 2017 through November 1, 2018." The email was sent to Kimber Heddens, the Board's Secretary/ Treasurer. On November 20, 2018, Appellant sent another email to the Board, asking "[i]f you are unable to provide the requested information in 3 days, provide when I might expect the copies." On November 23, 2018, the Board emailed copies of seven leases to Appellant and stated that "Additional lease copies will be available next week." Four more leases were emailed to Appellant on December 1, one more lease was emailed to Appellant on December 7, and three more leases were emailed on December 14. Appellant sent another email to the Board on December 16, 2018, thanking the Board for the hangar leases she had received, but also requesting "a date as to when all copies of the remaining hangar leases will be sent." The Board emailed two more hangar leases to Appellant on December 21, 2018 and stated that "Additional leases will be available next week as they are processed." Appellant then filed her appeal with this office.
J. Christopher Hopgood, attorney, responded on behalf of the Board. The Board stated that the Henderson City-County Airport is managed by a volunteer board and Kimber Heddens is a volunteer secretary who maintains the records of the agency. The Board further stated that the "repeated requests . . . certainly could be considered harassing and intended to disrupt the business of the Airport secretary. However, to the extent that Mrs. Kushino is willing to work with us on the timing of the responses, we are willing to respond to her request."
Responding within three days . A public agency such as the Board must comply with the procedural and substantive requirements of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to properly submitted requests. 1 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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. See 08-ORD-170; 10-ORD-033; 12-ORD-180; 16-ORD-244. Thus, in construing KRS 61.880(1), this office has consistently recognized, "[T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-153.
Support for this position is found in KRS 61.872(5), which authorizes postponement of access to public records beyond three business days only "[i]f the public record is in active use, in storage or not otherwise available." Under those circumstances, "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. " KRS 61.872(5); 01-ORD-140; 16-ORD-153. "[T]he 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.'" 01-ORD-140, p. 4 (citing OAG-92-117). "Only if the parameters of a request are broad," this office reasoned, "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.' . . ." Id. (citation omitted). 01-ORD-140, p. 4; 07-ORD-179; 09-ORD-007; 13-ORD-098; 14-ORD-026. By failing to issue a written response of any kind to Appellant's request within three business days and by failing to properly invoke KRS 61.872(5), if appropriate, the Board violated the Act. See 16-ORD-044.
Delay in Producing Records Not Excused by Volunteer Status . In light of the Board's responses to Appellant, this office must clarify that Mr. Hedden's status as a volunteer Secretary/ Treasurer does not excuse or mitigate the Board's failure to fully discharge its duties under KRS 61.880(1) upon receipt of a properly submitted request. See , 14-ORD-026. The Board, 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. 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. "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. Found., 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. The fact that a public agency is staffed by a volunteer custodian of the records does not diminish its responsibilities to comply with the Act. The volunteer status of the Board secretary does not constitute a reason for delaying production of the requested records, or its duty to respond to the request within three days pursuant to KRS 61.880(1).
In the absence of a detailed explanation of the cause for the delay in providing access, the Attorney General must conclude that the Board did not provide Appellant with "timely access" to the requested records. The ongoing delay subverts 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; 13-ORD-053; 14-ORD-040. While we recognize the apparent good faith efforts of the Board to produce records in response to Appellant's request, such efforts did not comply with the requirements of the Act.
Disruption of the Business . The Board's answer stated that the "repeated requests" could be considered harassing and intended to disrupt the business of the airport secretary. We interpret this portion of the Board's response as attempting to invoke KRS 61.872(6), which states:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
We find that the Board's implied reliance on KRS 61.872(6) is in error. To prevent agencies from exploiting KRS 61.872(6) as a means of circumventing the requirements of the Act, a refusal made on that basis must be sustained by clear and convincing evidence, prompting this office to observe that every request "causes some inconvenience to the staff of the public agency. . . . [Nevertheless, we] believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. " 00-ORD-72, p. 3 (citation omitted). In determining whether a public agency has properly invoked KRS 61.872(6), this office "must weigh two competing interests: that of the public in securing access to agency records, and that of the agency in effectively executing its public function." Id. (citing 96-ORD-155); 11-ORD-173. The Attorney General has "rarely found sufficient evidence in the record on appeal to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that a single records request or repeated requests are intended to disrupt the agency's essential functions." 05-ORD-152, p. 5; 10-ORD-003; 13-ORD-145. That is especially true when, as in this case, no evidence has been presented. Compare 11-ORD-144. The Board failed to sustain its burden of proof under KRS 61.872(6) in regards to its disposition of Appellant's request.
For the reasons set forth above, we find that the Board must provide the requested records without further delay.
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 proceeding.
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