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 Open Records short of denial and within the meaning of KRS 61.880(4), in the disposition of Floyd County Chronicle & Times Reporter Mary Meadows' January 29, 2019, request. Ms. Meadows requested, in electronic format, copies of "all bill lists, as approved, by the Martin City Council on January 22, 2019," for the months of October, November, and December 2018, as well as copies of "all invoices for all bills" the Council approved for those months during its January 22, 2019, meeting, and copies of "all checks showing payment of all bills that were approved, any payroll approved, or other items approved for payment" by the Council for those months during its January 22, 2019, meeting. By letter dated February 5, 2019, City Attorney James D. Adams, II acknowledged receiving a faxed copy of Ms. Meadows' January 29 request on February 4, 2019. Mr. Adams enclosed a copy of the "Check register from 10-1-18 through 12-31-18," indicating that "all checks issued by the City" were reflected therein. He further stated that all invoices were reflected therein and, in addressing the request for all checks explained, "The check register provides the check number as well as the payee to which each check was issued." He stated that if Ms. Meadows wished to review all of these invoices and checks, "you may contact Ethel Clouse, in advance, at Martin City Hall to schedule an appointment to facilitate prompt access to these records. Alternatively, the City will send you copies of these records by mail at a cost of ten cents per page, plus postage. " He asked Ms. Meadows to notify him if she wished to receive the requested copies via U.S. mail so that he could provide her with an invoice from the City for the copies and postage.
In her February 15, 2019, letter of appeal, Ms. Meadows acknowledged receiving the faxed copy of the bill lists, but noted that Mr. Adams failed to cite the specific exception he relied upon to justify redaction of the balances. On February 7, 2019, Floyd County Chronicle & Times Publisher Jeff Vanderbeck and Editor Russ Cassady contacted Mr. Adams to express their concerns regarding the redactions. Per Mr. Adams' request, Mr. Vanderbeck agreed to submit a new request specifically asking for the "balances" appearing on the bill lists, and informed Mr. Adams that it "seeks to obtain copies of all invoices and checks previously requested." Ms. Meadows attached the February 7, 2019, e-mail to City Clerk Ethel Clouse, reiterating her original request as to copies of "all invoices for all bills" and copies of "all checks showing payment of all bills. . . ." Ms. Meadows indicated that she would be "more than happy to come pick these items up at city hall when they are ready." 1 She also stated that she was enclosing a new request, per Mr. Adams, and specifically requested that Ms. Clouse forward a copy to him.
In the attached letter, Ms. Meadows requested the following in electronic format: 2 "Copies of all bill lists/check registers, as approved by the Martin City Council on January 22, 2019, for the months of October 2018, November 2018, and December 2018, which include all information viewed by council members prior to their vote, including but not limited to, the dates, check number, payee, amount, memo, payment, deposit and balance lists." She asked the City to cite the specific law (exception) that justified any redactions from the records provided, as required under the Act. Following a special meeting on February 9, 2019, Ms. Meadows asked Ms. Clouse whether she had received the February 7, 2019, request; Ms. Clouse stated that she had not checked her e-mail and further indicated that she would have to consult with the Mayor as to when she could visit City Hall to receive the requested copies. On February 13, 2019, Ms. Meadows contacted Mr. Adams; he indicated that he did not receive a copy of the request and Ms. Meadows agreed to send him a copy. By e-mail dated February 14, 2019, Mr. Adams indicated, "I have been assured that Ethel is working on copies. I am sure once that is completed, she will let you know the copies are ready." However, by letter faxed to Ms. Meadows on February 15, 2019, he advised that he was attaching the "Check register from 10-1-18 through 12-31-18," which "indicates all checks issued by the City." Without further explanation, he stated, "The items that are redacted from the Check Register are exempted under the Kentucky Open Records Act by KRS 61.878(1) et. seq ."
By letter dated February 15, 2019, Ms. Meadows initiated the instant appeal, requesting a ruling that the City violated the Act in failing to comply with all requirements of KRS 61.880(1)(or comply with KRS 61.872(5), in the alternative, if appropriate) in failing to issue timely written responses to her January 29, 2019, and February 7, 2019, requests and in failing to cite the particular statutory exception to justify the redactions it made on the records ultimately provided and provide a brief explanation of how that exception applied to records being withheld. When viewed in light of the mandatory language of the relevant provisions and existing legal authority, the unrefuted facts of record substantiate each of her allegations. Upon receiving notification of Ms. Meadows' appeal, Mr. Adams responded on behalf of the City. Mr. Adams first stated, "To date, the City has not received a request for invoices of the associated cost of copying or postage. " He also claimed that "a timeframe was not established, through no fault of the City of Martin" because Ms. Meadows did not contact Ms. Clouse to schedule a time for inspection. He further indicated that he "obtained a date of March 6, 2019," at 1:00 p.m. at City Hall for Ms. Meadows to conduct her inspection of the records. Mr. Adams described the redacted information as the "account numbers issued by vendors/creditors to the City" and "certain personal identifying factors and numbers involving City employees," both of which it believes could "expose the City, its vendors/creditors, and certain employees to theft of identity and/or potential theft of credit." Lastly, he argued that Ms. Meadows did not specifically request "deposits and balances" and reiterated "KRS 61.878(1)" as justification for the redaction of the balances.
Given the fundamental misconceptions by the City of its duties, 3 and the resulting number of procedural irregularities that culminated in the instant appeal, this office first notes that compliance with provisions of the Act "is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public." 03-ORD-067, p. 2 (citing 93-ORD-125, p. 5); 11-ORD-042; 13-ORD-061; 15-ORD-152. Accordingly, the City is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests made under the Act. Notwithstanding any challenges the City may face in complying, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 4 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 the absence of the regular custodian of the records"); 09-ORD-091 (statutory period for a response "cannot be extended to accommodate the schedules of agency staff"); 14-ORD-026.
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." "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); 01-ORD-140. For this reason, the 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-206. The only provision that authorizes postponement of access beyond three working days, KSR 61.872(5), provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency " 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).
Ms. Meadows directed her January 29 request to both Ms. Clouse and Mr. Adams, using the address for City Hall. 5 Mr. Adams apparently did not receive Ms. Meadow's January 29 request until February 4, and promptly responded in writing on February 5 (after the close of business) per KRS 61.880(1); the record is unclear as to whether Ms. Clouse did not receive it until February 4 or simply failed to forward the request to Mr. Adams for a response. However, the unrefuted facts establish that Ms. Meadows essentially resubmitted her original request as to all of the items, except for the bill lists, on February 7, and clarified the scope of her original request as to said records in a separate February 7 request. Ms. Meadows' original request was facially unambiguous and clearly intended to encompass complete documents, i.e. , all nonexempt information contained therein.
A public agency does not discharge its duty in providing a requester with information it believes the requester is asking to receive instead of a copy of the actual record. 96-ORD-199, p. 1. Rather, a requester is entitled to inspect/ copy the actual record in dispute, with only exempt information redacted with a statutory basis for any redaction provided in writing; a summary of the information contained therein or a partial disclosure is not a substitute for the underlying record. Id . See 03-ORD-096 (agency exerted commendable effort in creating a record containing the information sought did not discharge its duty "until existing documents substantiating that information, such as payroll records, receipts, ledgers, or bookkeeping entries [were] disclosed"); 09-ORD-002 (rejecting the assertion that public's interest "in monitoring the expenditure of public funds for contract legal services is adequately served by disclosure of the invoices upon which payment is made and not by disclosure of the underlying work detail"); 18-ORD-113.
Even assuming the City was justified in asking Ms. Meadows to resubmit and/or clarify her original request, however, the City again failed to forward the request to Mr. Adams in a timely manner, which resulted in further delay. 6 Ms. Meadows had to send her February 7 request to Mr. Adams directly on February 13 (a written response was due on the third working day following receipt on February 7, or February 12); he again issued a timely, if otherwise deficient, response on February 14 (advising that "Ethel is working on copies" responsive to her January 29 request). In his February 15 letter, Mr. Adams indicated that he was, again, enclosing the Check Register from October 1, 2018-December 31, 2018, 7 but stated that unspecified "items" were redacted as exempt under "KRS 61.878(1)." Even if the City had issued a timely written response to each request, both of the initial responses were otherwise deficient insofar as the City failed to either provide Ms. Meadows with access to all existing responsive documents within that period of time or cite the applicable statutory exception 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), 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. Absent from the initial and supplemental responses by the City is any reference to KRS 61.872(5); also lacking is the statutorily required explanation of the cause for delay until March 6, over a month after Ms. Meadows first submitted her January 29 request. 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 or to what extent. 8 "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. "The 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; 14-ORD-047; 16-ORD-206; 17-ORD-082. "In the absence of a legitimate detailed explanation of the cause for delaying access" for more than a month (by March 6), the Attorney General finds that Ms. Meadows has not received "timely access" to any existing responsive documents except for the bill lists and this delay subverted the intent of the Act under KRS 61.880(4). 13-ORD-052, pp. 6-7; 16-ORD-188.
The City also initially committed a procedural violation of the Act in failing to cite which of the statutory exceptions identified at KRS 61.878 (1) it was invoking. 17-ORD-197, p. 5. KRS 61.880(1) also provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld ." (Emphasis added). "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. See
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013). A public agency has the burden of justifying its denial on appeal to the Attorney General or to the circuit court. KRS 61.880(2)(c) ; KRS 61.882(3). See 00-ORD-10, pp. 10-11(citation omitted). A "bare assertion" relative to the basis for denial . . . does not satisfy this burden. Id. , p. 11. The City has yet to identify a specific exception to disclosure in support of any redactions it made from the records already provided; thus, it has not satisfied its burden per KRS 61.880(1) and 61.880(2)(c).
The City also subverted the intent of the Act in requiring Ms. Meadows to schedule an appointment to inspect or copy the records at issue. In construing KRS 61.872(3), mandating that public agency records be accessible by the public "during the regular office hours of the public agency, " this office has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted). The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours, " neither of which has been established here. Id. Under those circumstances, the Act contemplates that the public agency and the requester will agree upon a mutually convenient time and place for the requester to inspect public records. Id. , pp. 4-5 (citation omitted). "In the interest of absolute clarity," this office reiterates that Ms. Meadows (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to [the City]." Id. , p. 5; 16-ORD-015.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 Pursuant to KRS 83A.085(3)(b), the City Clerk is charged with "[p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882." KRS 61.870(5) defines "Official Custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." On the other hand, KRS 61.870(6) provides that "'Custodian' means the official custodian or any authorized person having personal custody and control of public records[.]"
2 Pursuant to KRS 61.874(2)(a), "Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records , where the agency currently maintains the records in electronic format." (Emphasis added). The "minimum standard format" for electronic records per KRS 61.874(2)(b), is "a flat file electronic American Standard Code for Information Interchange (ASCII) format." However, KRS 61.874(2)(b) further provides, "If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requester's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency." Ms. Meadows specifically asked the City, on both occasions, to provide the records in electronic format. However, the City has repeatedly offered to provide Ms. Meadows with an opportunity to inspect existing responsive documents, which it may otherwise require prior to providing copies per KRS 61.872(3)(b), or mail hard copies to her upon receipt of the copying fees and postage. The record is unclear as to whether some or all of the records exist in electronic format; if so, KRS 61.874(2)(a) plainly requires the City to provide the records in that format. See 14-ORD-148 (agency "cannot impose a ten cents per page copying fee for paper copies of electronic records requested in electronic format").
3 For example, the City was required to either make the records available for inspection during regular business hours per KRS 61.872(3)(a), providing copies after the requester exercised that statutory right, or mail the copies upon receipt of the copying fees and postage per KRS 61.872(3) and 61.874(1)(as opposed to expecting the requester to send a second letter asking for an invoice).
4 In her February 26, 2019, reply to Mr. Adams' February 25, 2019, appeal response, Ms. Meadows refuted his claim that she had "yet to schedule an appointment with the clerk," stating that she requested a time via e-mail on February 7; following a canceled special meeting on February 9; and following a special meeting on February 20. Following a conversation with Mr. Adams on February 13, during which he indicated that he did not have authority to require the Clerk to schedule a time for inspection of the records, and Ms. Meadows' subsequent conversation with him on February 20, she again contacted Ms. Clouse but "was refused because she said she had other stuff to do." A public agency response (even if written as opposed to verbal) 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.
5 The record is devoid of any indication the City has adopted the "rules and regulations" mandated under KRS 61.876(1) to ensure, among other things, "efficient and timely action in response to application for inspection." Pursuant to KRS 61.876(1)(b), these should include, "The title and address of the official custodian of the public agency's records[.]" As indicated at note 1, the City Clerk is deemed the official custodian of City records per KRS 83A.085(3)(b). If the City has not already done so, it should adopt said "rules and regulations" and display them in a "prominent location accessible to the public." See KRS 61.876(2).
6 This office sees "nothing wrong with [the City's apparent] policy of processing open records requests through its legal department. . . . This policy ensures uniformity and adherence to the law. . . . However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4; 10-ORD-151 (absence of counsel did not toll the agency's time for in her absence"); 11-ORD-029; 12-ORD-128; 15-ORD-174.
"[I]t is incumbent on the [public agency] to make reasonable efforts to ensure that an employee who receives a misdirected open records request immediately forwards that request to the agency's official custodian for timely processing, or at a minimum notifies the requester and 'furnish[es] the name and location of the custodian of the public record.' KRS 61.872(4)." 03-ORD-032, p. 2 (emphasis added); 12-ORD-153 (following Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006)); 15-ORD-136. Similarly, if Ms. Clouse wished to consult her legal counsel, prior to responding to any of the requests on behalf of the City, it was her obligation to forward a copy to him in a timely manner. Delays resulting from internal miscommunications are not permissible.
7 Ms. Meadows later clarified that after she filed this appeal on February 15, Mr. Adams faxed 21 pages to her-"bill lists for what appears to be three accounts maintained by the city." The City omitted copies of bill lists for Martin City Water and City Sewer in responding to her initial request, but did provide those lists upon receipt of her second request. Mr. Adams did not redact balances from the copies that he forwarded to Ms. Meadows on February 15. Accordingly, further discussion of whether the City's initial redaction of the balances was appropriate is unwarranted. See 40 KAR 1:030 Section 6. However, the City did redact "partial account numbers for various vendors, the city hall phone number, invoice numbers and child support enforcement case numbers." Ms. Meadows disputed the propriety of these redactions, but acknowledged that redaction of bank account numbers by the City "is appropriate and expected." Whether the invoice numbers and partial account numbers are subject to disclosure may be debatable, but no basis or authority exists to validate the City's withholding of the City Hall telephone number.
8 See 02-ORD-217; 12-ORD-043; 13-ORD-168. Merely stating that records are "in use," or "in storage," or "not otherwise available," does not constitute a "detailed explanation of the cause . . . for further delay." 15-ORD-029, p. 2. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.'" Lexington-Fayette Urban Cty. Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3.