Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the actions of the Housing Authority of Louisville relative to several open records requests received from E. J. Hurst, Law Clerk, and F. Todd Lewis, Attorney, with the Legal Aid Society.
By letter dated June 3, 1998, E. J. Hurst, Law Clerk, Legal Aid Society, requested copies of the following documents:
1. Admission and Administrative Plans for all tenant-based housing assistance programs; for all certificate and voucher housing assistance programs; and for all project-based housing assistance programs;
2. Occupancy and Consolidated Plans for all housing assistance programs;
3. Grievance procedures and protocols for all housing assistance programs;
4. Any and all employee handbooks, manuals, memoranda, and other documents regarding admission to or grievances under all housing assistance programs;
5. Any and all memoranda, meeting minutes, drafts and commentaries and all other records pertaining to adoption of current grievance procedures and protocols.
By letter dated June 9, 1998, John J. Llewellyn, Attorney, responded to Mr. Hurst's request, stating:
Regarding the attached open records request that has been made by E. J. Hurst, a legal intern in your office, be advised that the individual who will respond on behalf of the Housing Authority of Louisville is presently out of town. It is anticipated that she will return on Monday June 15, 1998. Upon her return your request will be brought to her attention.
By letter dated July 6, 1998, F. Todd Lewis, Attorney, Legal Aid Society, requested copies of the following records:
(1) Any and all rules, regulations, board resolutions, statements of policy, proposed and adopted lease provisions or similar records setting forth any policy of Housing Authority of Louisville with regard to regulation 24 C.F.R. § 966.4(1)(5), or otherwise relating to whether and how discretion should be exercised in deciding to evict public housing tenants for criminal activity of certain persons. (This regulation provides standards for the exercise of discretion in certain evictions, and a copy is included herein).
(2) Complete minutes of any and all board meetings, committee meetings, or other public meetings, the agenda of which included proposal for any action of the Housing Authority of Louisville with regard to the above-cited federal regulation, or action otherwise related to the exercise of discretion in deciding to evict a public housing tenant for criminal activity of certain persons.
(3) Any and all notices sent to any public housing resident council notifying said council(s) of proposed action as described in paragraphs (1) and (2) above, and/or requesting involvement by such resident councils in the above-described process.
On July 8, 1998, Mr. Lewis, via facsimile and hand-delivery, sent another request, denoted, "LaTonya Horton Section 8 Application," seeking access to the regulations followed by the Housing Authority concerning tenant-based assistance. In his letter of appeal to this office, Mr. Lewis indicated that Candy L. Olmstead of the Housing Authority stated on July 8, 1998 that a response to the request would be received on July 13, 1998, but no response was received.
By letter dated July 14, 1998, addressed to Mr. Llewellyn, Mr. Lewis requested responses to the three requests on behalf of himself, E. J. Hurst, and LaTonya Horton. With his request, he enclosed copies of the three requests.
In his letter of appeal, dated July 30, 1998, Mr. Lewis indicated that they had yet to receive either the records or a response from the Housing Authority. He asks this office to review the requests and the agency's responses or lack thereof for compliance with the Open Records Act. Specifically, he asks us to review compliance with:
(1) Housing Authority of Louisville's duty under KRS 61.876 and 61.880(4) to promulgate and inform requesters of procedures applicable to requests, including especially informing a requester of the title and address of the official custodian. To date, we have received oral responses that requests are to go directly to counsel, John Llewellyn, but subsequent oral responses from Mr. Llewellyn that he is not the custodian of records. I am not objecting to counsel's review of requests, but feel that the proper custodian should be disclosed, and requests taken initially by this person.
On August 3, 1998, we sent the Housing Authority a "Notification to Agency of Receipt of Open Records Appeal" and enclosed a copy of Mr. Lewis's letter.
On August 7, 1998, this office received a facsimile copy of a August 6, 1998 letter from the Housing Authority to Mr. Lewis from Candy J. Olmstead, Director of Occupancy and Leasing, which was written in response to the letter of appeal filed with the Attorney General.
Ms. Olmstead's letter indicates that, on August 4, 1998, most of the requested records had been provided. The letter also identified certain requested records, which were in agency archives, that had to be retrieved and would be available on August 29, 1998. She responded that the records request relating to "employee handbooks, manuals, memoranda, and other documents regarding admission to or grievances under all housing assistance programs" was unclear and asked Mr. Lewis to clarify this request. Finally, Ms. Olmstead indicated that records relating to "Admission and Administrative Plans for all voucher housing assistance programs; and for all project-based housing assistance programs" were not available because these types of housing programs are not operational at the housing Authority of Louisville.
The issues presented in this open records appeal are of a procedural, rather than a substantive character. This is not to trivialize or otherwise detract from their importance. This office has previously noted that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125. For the reasons set forth below, we conclude that the Housing Authority's handling of the requests of Mr. Hurst and Mr. Lewis constituted a partial violation of the Open Records Act.
Although procedurally deficient, the Housing Authority's August 6, 1998 response substantively complied with the Open Records Act in that it provided copies of most of the requested records. As required by KRS 61.872(5), it explained that the production of requested records which were in archives would be delayed until August 29, 1998. The agency, however, was procedurally deficient in failing to immediately notify the requesters that the records were not available and explain the reason for the delay within three days of the receipt of the request, as required by KRS 61.872(5). Likewise, the agency's response for clarification of another portion of the request was also procedurally deficient in failing to respond within the required three day period. KRS 61.880(1). Although also untimely, the Housing Authority properly responded that it did not have records relating to voucher housing assistance programs and project-based housing assistance programs and explained why. This office has consistently recognized that an agency cannot provide copies of records which do it does not have or which do no exist.
In his letter of appeal, Mr. Lewis states that the last time he sought this office's review of a Housing Authority of Louisville response to an open records request, the records were produced only after an appeal was filed with the Attorney General. He asks this office to consider this pattern of conduct under KRS 61.880(4). That statute provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
As set forth above, we concluded that the Housing Authority's response was a procedural violation of the Open Records Act in failing to timely respond to the requests as required by KRS 61.872(5) and KRS 61.880(1). Although we do not find that the Housing Authority, in this instance, subverted the intent of the Open Records Act by responding to the requests and providing records after the appeal was filed with this office, we do conclude and put the agency on notice that a continued pattern of such conduct would be evidence tending to support a subversion of the intent of the Open Records Act.
We remind the Housing Authority, and all other agencies, that a supplemental response to a letter of appeal, authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement, and not take the place of or supplant, an agency's original denial or failure to timely respond to an open records request. The purpose of a supplemental response is to address issues raised in the letter of appeal, correct misstatements or misunderstandings which appear in, or arise from, the letter of appeal, or which offer additional support for the agency's original denial.
We further find the Housing Authority's June 9, 1998 response to Mr. Hurst's June 6, 1998 request did not set forth a proper basis for delaying an open records response. The response stated the request would be brought to the attention of the individual who would be responding to the request when she returned to work on June 15, 1998.
In 96-ORD-54, addressing the issue of the custodian of records being away on vacation, this office stated:
A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. If the custodian goes on vacation, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian.
To the extent the Housing Authority postponed the timely inspection of public records due to an employee's vacation, its actions were inconsistent with the Open Records Act
Mr. Lewis also argues that the Housing Authority has not complied with the requirements of KRS 61.876 by informing requesters of procedures applicable to open records requests and the name and address of the official custodian of its records.
In OAG 78-340, this office held that KRS 61.876 requires that each public agency shall adopt rules and regulations pertaining to public records and failure to do so constitutes a technical violation of the Open Records Act. KRS 61.876(2) requires each agency to display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public. These rules and regulations are also required to set forth the name and address of the official custodian of the agency's records.
If it has not done so, the Housing Authority should immediately review its policy relative to KRS 61.876 to insure conformity with this provision of the Open Records Act.
Finally, Mr. Lewis asserts that the Housing Authority has advised that requests are to go directly to its counsel, John Llewellen, but Mr. Llewellen indicates he is not the custodian of record. In 93-ORD-134, we addressed the City of Louisville's policy of processing open records requests through its legal department. In that decision, we stated:
Nevertheless, we see nothing wrong with the City's policy of processing open records requests through its Law Department. In our view, this policy insures uniformity and adherence to the law. The policy may, however, be problematic if it occasions delays in agency response. Accordingly, the City is encouraged to streamline its policy by educating the various agencies throughout city government on the importance of providing a timely response as well as timely access to records.
Thus, if the Housing Authority requires that requests first be reviewed by its counsel, it should streamline its procedures to ensure that such review does not interfere with the agency's obligation to provide the requester with a timely response to his request, as required by KRS 61.880(1).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.