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 Martin violated the Open Records Act or subverted the intent of the Act, short of denial and within the meaning of KRS 61.880(4), in the disposition of Rita Daniels' January 23, 2019, request for a copy of the following records:
1) All minutes of any and all meetings by the Martin City Council for the last twenty[-]four months starting on today's date;
2) [T]he advertisement and bid tally sheets for the expenditures concerning the surveys of the proposed annex area;
3) [T]he SPECIFIC map concerning the proposed annexed area that was not made readily available to the public;
4) [T]he last two fiscal years['] city budget and any revisions; and
5) [T]he City of Martin's audits as well as your uniform financial information report (UFIR) for the last three years.
Ms. Daniels requested to receive the copies by 2:00 p.m. on Friday, January 25, 2019.
In challenging the actions (or inaction) of the City of Martin per KRS 61.880(2), Ms. Daniels provided this office with a copy of a handwritten note dated January 30, 2019, from City Clerk Ethel Clouse, on what appears to be a small piece of paper torn from a memo pad containing the contact information for a private business on the bottom. The note, containing the word "Memo" in the top left-hand corner, was not directed to Ms. Daniels, nor does the record on appeal indicate how she obtained it. Rather, the note appears to indicate that Ms. Clouse was either providing direction to an employee or memorializing a communication that she had with Ms. Daniels. The note reads as follows: "Rita Daniels came in for items requested. I gave her the list [sic] that packets were sent out. Ask her to call for an appointment and I will get copies as soon as I can."
On February 14, 2019, this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Ms. Clouse and to Martin City Attorney John D. Adams, II, advising that any response on behalf of the City "must be received no later than Wednesday, February 20, 2019." On Tuesday, February 19, 2019, Mr. Adams contacted this office by telephone and requested an extension of time in which to respond on behalf of the City. This office granted Mr. Adams' request but indicated that his response must be received by the close of business on Friday, February 22, 2019. As of the morning of Monday, February 25, 2019, this office had not received any such response. However, the undersigned Assistant Attorney General ultimately learned that a manila envelope, with a return address located in Martin, Kentucky, was received in this office that morning, but was not directed to a specific individual and it did not reference the log number assigned to Ms. Daniels' appeal. Following a telephone conversation with Mr. Adams, this office returned the package to him (so that he could have an opportunity to discuss the City's response with Ms. Clouse in order to avoid further confusion or delay). As of today's date, this office has not received any further correspondence on behalf of the City.
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. 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. To the contrary, 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 Act. 96-ORD-238, p. 2; 17-ORD-210.
Even viewing the limited record on appeal in a light most favorable to Ms. Clouse and the City, if the January 30, 2019, handwritten note was meant to serve as her formal written response to Ms. Daniels' January 23, 2019, request, it was not provided until the fifth working day following receipt of the request, which was two days after the permissible timeframe of three working days. See KRS 61.880(1). It was otherwise deficient insofar as the City failed to either provide Ms. Daniels with access to all existing responsive documents within that period of time, or to cite the applicable statutory exception(s) and explain how it applied to any records being withheld in writing. KRS 61.880(1). The City failed, in the alternative, to expressly invoke KRS 61.872(5), 1 the statutorily recognized exception to KRS 61.880(1), and to provide a detailed explanation of the cause for delay in producing all existing responsive documents and the specific date when the documents would be available. See 12-ORD-151; 13-ORD-035. Absent from the January 30, 2019, note is any reference to KRS 61.872(5). Also lacking is the requisite detailed explanation of the cause for delay and the specific date when the records would be made available. 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.
As a public agency, the City must comply with procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or purpose in requesting access with limited exceptions not applicable in this case. 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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6; 01-ORD-140; 06-ORD-147; 10-ORD-201; 11-ORD-035. The City violated the Act in failing to issue a timely written response (whether it was two days late or no response was ever sent) 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 working 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.
Vague reasons for the delay and estimates of how long it will be, such as that provided in the January 30, 2019, note ("as soon as I can"), are insufficient for purposes of complying with KRS 61.872(5), which requires a "detailed explanation" and the "place, time, and earliest date" when records will be available for inspection. 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 . . ."); 07-ORD-158; 08-ORD-006. In addition, the need to identify and review documents alone would 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; 10-ORD-138; 15-ORD-029; 02-ORD-217; 12-ORD-043; 16-ORD-210.
On appeal, the City made no attempt to remedy these procedural deficiencies. "In the absence of a legitimate detailed explanation of the cause for delaying access" for approximately six weeks to date, the Attorney General finds the City subverted the intent of the Act, short of denial, in failing to provide Ms. Daniels with "timely access" to any existing responsive records. 13-ORD-052, pp. 6-7; 16-ORD-188 (University of Louisville's response was not timely under KRS 61.880(1) nor did it satisfy the requirements of KRS 61.872(5)); 15-ORD-042. Because the City has not, yet, denied access to such records, the Attorney General has no basis upon which to find that the City has committed a substantive violation.
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 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.