What is a reasonable delay in agency production of open records?

This is, as we have noted in earlier posts, a common question presented in open records appeals to the Kentucky Attorney General.

In the case described below — which involved records generated in the investigation of an accidental shooting of a Scott County deputy during the attempted apprehension of a fugitive — the Lexington Herald-Leader first requested the records one month after the September 11 incident.

KSP denied the H-L's October 11 request, indicating that the records were not subject to the open records law because the investigation was open.

On March 20, the Scott County Sheriff announced the results of the investigation by KSP's Critical Incident Response Team which confirmed that the deputy was shot by a fellow officer but that the identity of that officer was indeterminable.

On March 21, the H-L submitted a new request for the investigative file. In a response dated March 27 but postmarked April 11, KSP advised that "due to the storage location of this file, the records are not immediately available."

In a second letter — dated April 26 — KSP advised the newspaper that "due to the size of the file records are not immediately available." KSP indicated that it would provide an update on May 30.

In other words, KSP trotted out every excuse available to justify noncompliance.

Upon inquiry, the Herald-Leader learned that "delays occur because there is one person dedicated to processing open records requests for the entire agency."

In all candor, is this supposed to evoke sympathy?

KSP Sgt. Josh Lawson advised the newspaper that the file contain 1000 pages and multiple audio recordings that must be reviewed "by our sole records custodian to determine if any information is protected from disclosure."

"Lawson would not say when the records would be released."

The article goes on to point to a consistent line of decisions issued by the Kentucky Attorney General rejecting the argument advanced by KSP.

Stated simply, a public agency cannot avoid, postpone, or delay compliance with the open records law by failing or refusing to allocate sufficient resources to ensure the proper discharge of its statutory duty.

It is inconceivable that existing administrative staff could not be temporarily reassigned to assist in reviewing the file. If not, the agency might consider hiring temporary staff to supplement its existing workforce and ensure compliance.

As the authorities cited in the article make clear, the agency cannot rely on staff shortages to circumvent its legal obligations.

In the world of open records requests as we know them today, 1000 pages of responsive records is not a lot. KSP has extended the three day deadline for production of nonexempt public records by more than two months, and has only committed to providing the Herald-Leader with an update — not producing the records — on May 30.

It has identified no date certain on which the requested investigative file will be disclosed.

Open records laws are premised on the notion that "the value of information is partly a function of time."

In general, what is a reasonable delay for production of public records turns on the facts of the individual case — unique problems associated with retrieval, number of records implicated, necessity of redaction.

What is completely unreasonable, in this specific case, is a two to nine month delay — depending on which of the two requests is the basis for calculation — with no end in sight.

The Herald-Leader requested a 1000 page file that was less than a month old when requested and required only standard redactions.

Leaving aside the legal issues associated with its original blanket denial of the Herald-Leader's first request, KSP's position in this case is indefensible.