Request By:
IN RE: Jerry Hardt/Cabinet for Human Resources
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Cabinet for Human Resources failure to respond to Mr. Jerry Hardt's July 24, 1992, request to inspect:
The telephone bills, long-distance telephone call logs and any similar records kept for all phone lines used by the Office of Director of Employment Services covering the period of October, 1990 through January, 1992.
Mr. Hardt indicates that he submitted his original request to Ms. Irene Howser, an employee in the Impress Cash Division, on July 24. On July 27, he received a phone call from another employee acknowledging receipt of the request, and advising him that because of the volume of records implicated by his request and the likelihood that some of them may have been transferred to State Archives, it would take a few days to locate the records. The caller stated that he would receive a written response from the Cabinet shortly.
In late August, Mr. Hardt called Ms. Howser and several other Cabinet employees. He states that although a few of these employees vaguely recalled his original request, no one could tell him what had happened to it. He was again assured that someone would contact him, but received no further word.
On August 28, 1992, Mr. Hardt resubmitted his original request. As of the date of his appeal, he had received no reply.
We are asked to determine if the Cabinet's actions relative to Mr. Hardt's requests violated the Open Records Act. It is the opinion of this Office that the Cabinet for Human Resources violated the Open Records Act in failing to issue a written response to Mr. Hardt's request within three business days, and in failing to provide timely access to the records identified in his request.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. 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 record 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 action.
The Cabinet's failure to respond in writing to Mr. Hardt's request within three days constitutes a technical violation of the Open Records Act.
In addition, we find that the Cabinet has failed to provide timely access to the records identified in Mr. Hardt's request. KRS 61.872(5) 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.
Mr. Hardt's initial open records request was submitted on July 24, 1992. He has still not received a written response to his request or been afforded access to the records. Almost one hundred days have elapsed since the date of his initial request.
The Cabinet for Human Resources erred in failing to respond in writing and to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at p. 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request. " See also OAG 91-200; OAG 92-35. We believe that a delay of one hundred days is inconsistent with the Open Records Act.
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records, some of which are not housed within the agency, such time limitations are virtually impossible to meet. OAG 90-24, at p. 12.
Nevertheless, it is the opinion of this Office that the one hundred days which have elapsed since Mr. Hardt submitted his initial request represents an inordinate and unreasonable delay. This Office has been advised by Mr. Ryan Halloran, Deputy General Counsel for the Human Resources Cabinet, that Mr. Hardt's request was forwarded to the Office of Counsel upon receipt. Mr. Hardt was then contacted by telephone and told that he would have to clarify his request. The Cabinet's records reflect that he did not respond to this verbal request.
Mr. Halloran acknowledges that the Cabinet did not respond in writing within three working days, but notes that Mr. Hardt failed to use the application form prepared by the Finance and Administration Cabinet, failed to specifically describe the records he wished to inspect, and failed to direct his application to the custodian of the records. While all of these may be mitigating factors which go to the reasonableness of the delay in responding to Mr. Hardt's request, we do not believe that they relieve the Cabinet of its duties under KRS 61.880(1).
In an early opinion, this Office recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 76-374, at p. 5. We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing the records and separating exempt from nonexempt materials. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
The Cabinet for Human Resources may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.