Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : University of Louisville violated KRS 61.880(1) by failing to respond to a request for public records for 81 days. The University failed to properly invoke KRS 61.872(5), failed to provide a statutorily adequate explanation of the cause for the delay, and subverted the intent of the Open Records Act within the meaning of KRS 61.880(4).
Open Records Decision
The question presented in this appeal is whether the University of Louisville ("University") violated the Open Records Act ("Act"), or subverted the intent of the Act, in its disposition of an open records request submitted by Kenny Jacoby ("Appellant"). For the reasons stated below, we find that the University violated KRS 61.880(1) by failing to timely respond to the open records request. The University failed to properly invoke KRS 61.872(5), failed to provide a statutorily adequate explanation for the cause of the delay, and subverted the intent of the Act within the meaning of KRS 61.880(4). 1
On May 20, 2019, Appellant submitted an open records request via email to the University records custodian and a separate email account that the University dedicated for receiving open records requests. Appellant stated he was seeking "records of expenses incurred by your institution for lodging players, coaches and staff on your institution's football team in hotel/ motel rooms[.]" Appellant listed seven dates pertinent to his request, and stated, "[i]n the event it would be significantly less time-consuming or easier ? for your institution to provide only the dollar amount for each date, as opposed to the actual receipt, invoice, hotel folio, budget line entry ? I would be willing to accept that instead."
On July 18, 2019, having received no response to his initial emails, Appellant submitted a follow-up email to the two University email addresses. On August 8, 2019, having received no response to the follow-up email messages, Appellant sent additional follow-up messages to both accounts. On August 9, 2019, Appellant appealed, arguing that after 81 days "the University has not communicated ? about this request in any capacity."
On August 16, 2019, the University responded to the appeal and explained the delay by stating Appellant "[w]as emailing regarding several pending requests and there was confusion about this one and it was listed, incorrectly, as completed in our system." However, the University stated it had provided Appellant the requested information during the appeal and provided our office a copy of the responsive spreadsheet of expenses. The University attached a reply email from Appellant acknowledging receipt of the information and argued the appeal was now moot. On August 26, 2019, Appellant asked that the appeal proceed because, "the University's response was extremely tardy."
We decline to find that the appeal is moot because it raises an issue under KRS 61.880(4) as to whether "the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant[.]" The Act requires that such complaints "shall be subject to the same adjudicatory process as if the record had been denied." See KRS 61.880(4). An excessive delay subverts the intent of the Act where the public agency also fails to provide an adequate explanation for the cause of the delay, pursuant to KRS 61.872(5). See 18-ORD-174. Accordingly, we decline to find that the appeal is moot.
The University violated KRS 61.880(1) by failing to issue a timely response to Appellant's request. 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 University did not respond for 81 days, only after receiving notice of this appeal. Even assuming the failure to timely respond was inadvertent, the University, 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; 01-ORD-140, p. 6. Accordingly, the University violated the Act by failing to comply with the time requirements of KRS 61.880(1).
The University failed to expressly invoke KRS 61.872(5), the only provision in the Act that authorizes postponing access to public records beyond the time requirements of KRS 61.880(1). 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. " The Act requires a public agency to expressly invoke KRS 61.872(5) in a written response. See 12-ORD-136; 16-ORD-018; 19-ORD-045. Accordingly, the University violated the Act.
The University also violated KRS 61.872(5) by failing to provide an explanation for the cause for delay. If any of the records sought were "in active use, in storage or not otherwise available," the University failed to specify which of these permissible reasons for delay applied or to what extent. The University argued that the burden of responding to Appellant's additional open records requests contributed to the delay. 2 However, the burden of addressing Appellant's other requests is not a "detailed explanation of the cause" for delay, because 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 [thirty day] delay in providing the requested records." 02-ORD-217. As such, the burden of responding to Appellant's other requests does not constitute a "detailed explanation of the cause" for delay, for purposes of KRS 61.872(5). In the absence of a statutorily adequate explanation, the University's 81-day delay subverted the intent of the Act.
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
1 KRS 61.880(4) states, "[i]f a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
2 The University does not expressly argue that Appellant's additional open records requests are an "unreasonable burden in producing public records" or that the requests "are intended to disrupt other essential functions of the public agency" within the meaning of KRS 61.872(6). However, the record lacks clear and convincing evidence to support such a claim. See KRS 61.872(6).