Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration
110 Administrative Building
University of Kentucky
Lexington, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Davy Jones, an Associate Professor at the University of Kentucky, has appealed to the Attorney General pursuant to KRS 61.880 your response to his May 6 and May 8, 1991, requests to inspect certain documents in the possession of the University of Kentucky. Although we have not inspected his original letters of request, Mr. Jones indicates that on May 6, he sought access to a series of numerically identified documents, many of which he concedes may be in storage, while others can be easily located in his faculty file. On May 8, he submitted three separate requests for specifically identified documents.
You responded to Mr. Jones's requests in a letter dated May 8, 1991, stating:
This memorandum is in response to your three-page open records request received in my office May 6, 1991, and in response to your three separate open records requests received in my office May 8, 1991, wherein you requested broad categories of records.
Please be advised some of the records you are seeking are in storage and not easily retrieved; therefore, we will need two weeks to search the files to attempt to locate the requested material. We will furnish you those records which may exist, and are not otherwise exempt from disclosure pursuant to KRS 61.878, no later than 8:00 a.m., May 17, 1991, in my office.
It is Mr. Jones's position that the University's response to his request was procedurally deficient in several respects. He argues that you improperly treated his four separate requests as one request, noting:
[W]hat were 4 independent requests became blurred as a single request for broad catagories of records, some of which were in storage. Then, since 'some' in this now single group were in storage, he wrote that all the records would be held hostage, including those otherwise available immediately, until those in storage were located.
As a corollary to this criticism of your handling of his request, Mr. Jones asserts that the withholding of all of the requested documents, including those that were immediately accessible, pending retrieval of those in storage, was improper. He submits:
The statute does not authorize the withholding of otherwise immediately available records only because, say, for 25 hypothetical requested records, 24 which are otherwise immediately available on Mr. Blanton's desk will be withheld because the 25th requested record is in storage and will take 6 weeks to dig out. If an agency were to hold all requested records hostage to one that was in storage, where is the limit to which the intent of the law could be subverted?
Mr. Jones asks that we review the University's response to his requests to determine if your actions were consistent with the Open Records Act. For the reasons outlined below, we conclude that your response was improper.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) contains specific guidelines for an agency's response to a request under the Open Records Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request 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. An agency response denying, in whole or in part, inspection of any records 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
These provisions have been construed to require a public agency to "respond separately and specifically to each request to inspect public records. " OAG 89-81, p.4. To the extent that the University treated Mr. Jone's four separate requests as one request, we find that its response was improper. While the University may well have wished to expedite this matter by issuing a single response, it nevertheless erred in failing to address Mr. Jones's four requests in four separate responses. While this requirement may impose an additional burden on the University, we believe that any other rule creates the potential for subversion of the Open Records Law.
With respect to Mr. Jones's second argument, we find that the University should have made available for inspection those documents which were immediately accessible or issued a proper denial pursuant to KRS 61.880(1). The University cannot withhold all documents until such time as it has retrieved those documents less accessible from storage. We agree with Mr. Jones that such a policy subverts the intent of the Open Records Act, which mandates a response time of no more than three days. KRS 61.872(4) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so 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.
This provision does not authorize an agency to withold records not in active use, not in storage and otherwise available until those records which are not available can be located. The University should have made all nonexempt, accessible records available within three days of Mr. Jones's requests.
Finally, Mr. Jones asks if you were correct in advising him that he would be furnished access to the records "no later than 8:00 a.m., May 17, 1991." He maintains that KRS 61.872(4) requires an agency to arrange for inspection on the earliest date the records can be made available. We do not believe that your use of the term "no later than" has any practical significance. You could just have easily stated that the records would be available "as early as" 8:00 a.m., May 17, 1991. Although your choice of words was perhaps unfortunate, your statement was clearly intended to conform to KRS 61.872(4).
As required by statute, a copy of this opinion will be sent to Mr. Davy Jones. Either Mr. Jones or the University has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).