Readers of this Courier Journal article about the decision of the Senate Majority to erect a wall in a Capitol Annex suite occupied by members of both parties — as a concession to requests for greater partisan privacy — might easily overlook the comical open records exchange between reporter Tom Loftus and the Finance and Administration Cabinet.

On August 16, Loftus requested records relating to the cost of the project.

The Finance Cabinet's nonsensical response?

The records are "in active use, in storage, or not otherwise available," and the Cabinet will provide the CJ with an update on the status of the records request on September 6.

There are a few legally defensible responses to the CJ's request. This is *not* one of them.

If true, the Finance Cabinet might have properly responded that the total cost has not yet been calculated but records documenting the cost to date are enclosed. Or, if true that no records documenting the cost have been generated or submitted, it might have properly denied the CJ's request because no responsive records exist and advised the newspaper to resubmit the request when the project is complete.

But to suggest that existing records are "in active use, in storage, or not otherwise available" in this age of automated record keeping is preposterous.

This language, which appears in KRS 61.872(5) and was last revised in 1994, is a relic of a bygone age when a single hard copy record might exist in a field office — for example a state police investigative file maintained at a post or a social worker's file maintained in a local health and family services (human resources) office. In the dim recesses of time, such files might be duplicated and mailed or transported to the agency's records custodian for final disposition.

At best, KRS 61.872(5) bought the agency a little additional time for records production beyond three working days. It did not then, nor does it now, buy the agency 20 days for a status update on a request. The statute clearly states that the agency must provide a detailed explanation of the cause for delay and state "the earliest date on which the records will be available for inspection."

It is absurd to suggest that these financial records — which are estimated to total approximately $12K — are in active use, in storage, or not otherwise available. They are not written notations in an old ledger in a remote office somewhere in the state. They are records maintained in an automated system which can be easily accessed and produced for immediate inspection.

The lengths to which some state agencies will go to obstruct access to nonexempt public records is mind-boggling.

And, by the way, it's also illegal.