Question of the day: Does a public agency violate the open records law when it agrees to honor an open records request in a written response issued on the tenth calendar day (soon to be fifth business day), but tells the requester that the records will not be immediately available?

Answer: Without a detailed explanation of the cause for delay, an agency that postpones release of public records it acknowledges its duty to disclose violates the law, specifically, KRS 61.880(1).

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065

A reporter called today to ask if the public agency to which he submitted an open records request properly notified him—on the tenth day after he submitted his request—that his request would be honored but the requested records would not be available for two months?

The reporter suggested to the agency that it immediately furnish him with the responsive paper records and release audio and video recordings when redaction was complete.

Rather than consider the reporter reasonable suggestion, the agency responded that there were multiple requesters waiting ahead of him and the records would be available in two months.

As the Kentucky Supreme Court recently observed in University of Kentucky v The Kernel Press, "Simply put, this is not how the ORA process works."

https://casetext.com/case/univ-of-ky-v-kernel-press-inc

Even more simply put, making an open records request is not equivalent to taking a number at the bakery!

The open records law requires a public agency to disclose nonexempt public records on the tenth calendar day after the agency receives the request. The response it issues on the tenth day is not a mere placeholder. The response should include the requested records or directions for paying for copies to be picked up or mailed.

https://apps.legislature.ky.gov/record/20rs/sb150.html

Under a new open records law, the agency's response time will be five business days.

https://apps.legislature.ky.gov/record/21rs/hb312.html

Any delay beyond ten calendar (soon to be five business) days triggers the agency's duty to issue a written response containing a detailed explanation of the cause for delay. The written response must also state "the place, time, and earliest date on which the public record will be available for inspection."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750

While a requester is free to permit the public agency some latitude in producing public records—particularly voluminous public records—an unexplained or inadequately explained delay violates or subverts the intent of the law and is appealable under KRS 61.880(2) and/or (4).

Timely access to public records is another foundational principle of the open records law. "The value of information is partly a function of time."