Request By:
IN RE: Sandy Semans-Herald/Natural Resources and Environmental Protection Cabinet
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 Natural Resources and Environmental Protection Cabinet's actions relative to Ms. Sandy Semans-Herald's October 19, 1992, request to inspect certain documents in the Cabinet's custody. Those records relate generally to B. T. Energy and Louisville Environmental Services' requests for modification of current permit.
In her letter of appeal to this Office, Ms. Semans-Herald states that on October 21, 1992, she spoke to Sharon Watkins, records clerk for the Division of Waste Management, to ascertain the status of her request. Ms. Watkins advised her that a portion of her request had been denied, but that she could make an appointment to review the nonexempt records. She explained that a written denial had been mailed, and that Ms. Semans-Herald would receive it shortly. In a letter dated October 21, Ms. Watkins confirmed her earlier statements. She explained that Ms. Semans-Herald's request had been forwarded to the Department of Law "since part of the information [requested] is confidential business information" involving the "financial status of the company." She anticipated that the Department of Law would receive the request on October 23, and expressed the belief "that they would have an additional three days to respond." Ms. Semans-Herald received the letter on October 26.
On November 10, 1992, Mr. David M. Jones, an attorney in the Department of Law, responded to Ms. Semans-Herald's original request. Attached to his response were the documents which he deemed "clearly discloseable under the Open Records Act. " Mr. Jones indicated that he would not release documents which were "determined pursuant to 400 KAR 1:060 to be confidential business information." Continuing, he explained:
These documents appear to be non-discloseable under 61.878(1)(c) and (j). In light of your request, we are reviewing the confidentiality of this information and will advise you as soon as possible.
Mr. Jones listed the items which had been determined to be confidential.
Ms. Semans-Herald argues that the Open Records Act requires an agency to issue a written denial within three business days, to cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the records withheld. In addition, she notes that under the law, as amended by the 1992 General Assembly, a person whose residence or principal place of business is outside the county in which the records are located may inspect the records by receiving copies from the public agency through the mail if he or she precisely describes the records, and they are readily available within the agency. She indicates that as of the date of her appeal, October 27, 1992, the Cabinet had failed to advise her to what materials she had been granted access, to what materials she had been denied access, and the exception authorizing the agency's denial.
We are asked to determine if the Natural Resources and Environmental Protection Cabinet violated the Open Records Act in failing to specifically advise Ms. Semans-Herald within three business days which records she would not be allowed to inspect and citing the exception which authorized nondisclosure. Additionally, we are asked to determine whether the Cabinet erred in requiring her to review the nonexempt records in Frankfort, rather than providing her with copies. For the reasons set forth below, we conclude that the Cabinet's actions constitute a partial violation of the rules governing procedures for agency response under the Open Records Act.
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.
On October 19, 1992, Ms. Semans-Herald submitted her original records request. In a letter dated October 21, 1992, Ms. Watkins responded to that request, advising her that certain records would not be released because they consisted of confidential business information, and that the matter had been referred to the Department of Law for review and response. Ms. Watkins invited Ms. Semans-Herald to inspect the nonexempt records at the Cabinet. She expressed the view that the Department of Law would have an additional three days to issue a written response.
The Department of Law's response was not issued until November 10, 1992, some 23 days after Ms. Semans-Herald's initial request. In it, Mr. Jones stated that the Cabinet would not release certain enumerated documents which were determined to be confidential business information pursuant to 400 KAR 1:060. He indicated that the Division would review the confidentiality of the records and "advise her as soon as possible."
It is the opinion of this Office that the Cabinet violated the Open Records Act in its October 21, 1991, response to the extent that it failed to cite the specific exception authorizing nondisclosure of the records it elected to withhold. In addition, the Cabinet erred in indefinitely suspending final action on her request in its November 10, 1992, follow-up response prepared by the Department of Law. Finally, the Cabinet improperly advised Ms. Semans-Herald that she would have to review the non-exempt documents in Frankfort rather than providing her with copies of those documents pursuant to KRS 61.872(3)(b).
As we have noted, KRS 61.880(1) requires a public agency to issue a written response to an open records request within three business days and to cite the specific exception authorizing nondisclosure and provide a brief explanation of how the exception applies to the records withheld. Although Ms. Watkins responded to Ms. Semans-Herald's request on behalf of the Cabinet within the statutorily prescribed time, she failed to cite the specific exception authorizing nondisclosure or briefly explain how that exception applied to the exempt records. Mr. Jones, on the other hand, cited the exception authorizing nondisclosure, but deferred action on her request pending review of the "confidentiality of [the] information. . . ." He did not designate a specific date when she could anticipate a final response from the Cabinet.
Nothing in the statutes authorizes an agency to indefinitely suspend final action on an open records request pending review of the applicability of a given exception to the requested records. "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. In the latter opinion, we held 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 in accessing and retrieving those documents. OAG 92-35, at p. 6.
Although we acknowledge that the difficulty of resolving the question of the applicability of an exception to a record must also be factored into this equation, we do not approve the Cabinet's actions relative to Ms. Semans-Herald's request. Simply stated, the Cabinet cannot leave the question in limbo. It must immediately notify her whether it intends to release the records, or provide her with a detailed explanation of the cause of the delay, and advise her of the earliest date she can anticipate a response.
Turning to the final question in this open records appeal, we find that Ms. Watkins erroneously advised Ms. Semans-Herald that she would be required to inspect the nonexempt records in Frankfort. Among the significant changes in the Open Records Act effected by the 1992 General Assembly is the requirement that a public agency mail copies of records to persons whose residence or principal place of business is outside the county in which the records are located, if the records are precisely described and are readily available within the public agency. KRS 61.872(3)(b). This represents a radical departure from the old law, and reflects a concern that persons residing outside the county where the records are maintained should not be compelled to travel great distances in order to inspect those records. Although Mr. Jones cured this violation by releasing copies of the "clearly discloseable" records, we urge the Cabinet to review this provision to insure that future responses conform to the Open Records Act.
The Natural Resources and Environmental Protection Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.