Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet violated provisions of KRS 61.870 to 61.884 in responding to Associated Press correspondent Mark R. Chellgren's open records request. For the reasons that follow, we find that the Cabinet's response constituted a partial violation of the Open Records Act, specifically KRS 61.872(5).
The facts of this appeal are in dispute. Although Mr. Chellgren indicates that he faxed his first request to the Cabinet on January 14, 1999, the Cabinet maintains that it never received this transmission. Regardless, Mr. Chellgren again faxed his request on January 22, 1999. His request encompassed some fourteen categories of documents relating to motor vehicle enforcement. Mr. Chellgren emphasized that he wished to inspect these records, and that he would "decide about obtaining copies" after he had inspected them.
On January 26, 1999, Mr. Chellgren received a response to his request from Ed Roberts, Commissioner of the Department of Administrative Services and Custodian of Records for the Transportation Cabinet. In it, Commissioner Roberts advised him "to contact Colonel Frost . . . to schedule a time and date to review the requested information," and furnished him with Colonel Frost's address and telephone number. At this point, the parties' factual narratives diverge. Mr. Chellgren states that on January 27 he called Colonel Frost and was advised "that the records were still being compiled and a time for . . . inspection would be set up." The Cabinet maintains that on January 28 Mr. Chellgren called the Department of Administrative Services "to confirm the receipt of the letter and to make sure he was to contact Colonel Frost."
Mr. Chellgren states that on February 1, he called the Cabinet and spoke to an employee in the Office of Public affairs who advised him that "the records were being compiled and [that he] would be contacted when they were available." The Cabinet asserts that on February 1, Mr. Chellgren "was informed that the materials would be available the next day." Each time he contacted the Transportation Cabinet, the Cabinet maintains, Mr. Chellgren "was informed that his request was lengthy and three employees were compiling the information." On February 2, Mr. Chellgren initiated this appeal. On February 3, the Cabinet advises us, he inspected and copied the records identified in his request in the Office of Public Affairs.
It is Mr. Chellgren's position that the Cabinet has improperly impeded access to nonexempt public records as a result of "bureaucratic turf protection, infighting and make-work efforts by an otherwise inaccurately named Office of Public Affairs. . . ." The Cabinet responds that it "has worked diligently to compile the lengthy list of materials from an ambiguous letter" and "provided detailed explanation to Mr. Chellgren as to the cause of the delay." In considering these positions, it is difficult to determine which is more accurate since this office can only consider the information as presented, and the two positions at issue are so adverse. Nevertheless, this dilemma does not prohibit this office from ruling on Mr. Chellgren's appeal.
This office has, on numerous occasions, addressed the issue of timely access to public records. In 93-ORD-134 we expended considerable effort in analyzing this issue, recognizing at the outset 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-134, p. 9. Portions of that analysis are relevant to our resolution of this appeal.
KRS 61.880 establishes procedural guidelines for agency response to an open records request. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, determine within three days of receipt whether it will comply with the request and notify in writing the person making the request, within the three day period, of its decision. At page 10 of 93-ORD-134, this office observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency [reviews its files]. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
Assuming the truthfulness of its assertion that it did not receive Mr. Chellgren's January 14 faxed request, we find that the Transportation Cabinet complied with KRS 61.880(1) in determining that it would honor his January 22 request within three business days of its receipt, and notifying him in writing of its decision. Although Commissioner Roberts did not expressly state that his request could be honored, that decision was implicit in his direction to Mr. Chellgren to contact Colonel Frost to arrange a date to inspect the records.
Nevertheless, because the requested records were not immediately available for inspection, we believe it was also incumbent on the Cabinet to provide a detailed explanation of the cause of the delay, and to designate the place, time, and earliest date on which the records could be reviewed. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately 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.
The Transportation Cabinet erred in failing to provide a detailed explanation of the cause of the delay and arranging for inspection at the earliest possible date. In 98-ORD-175 and as recently as January 25 of this year, the Attorney General, in response to the Cabinet's failure to comply with KRS 61.872(5), held:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6. To avert this problem in the future, in 99-ORD-13, we also urged the Transportation Cabinet to implement new open records policies to insure compliance with the procedural requirements of the Act.
Although the Cabinet's response to Mr. Chellgren's request represents some improvement over its earlier responses to open records requests, insofar as it notifies him in writing, and within three days, of its decision to comply, the response is nevertheless deficient. In addition to informing Mr. Chellgren that his request would be honored, the Cabinet was obligated to explain that because his request involved a large number of records which must be located and retrieved an additional four days would be required to produce the records, but that they would be available for inspection in the Office of Public Affairs at 8:00 a.m. on February 2, 1999. Any response that does not include this information falls short of full compliance with the Act.
Whether the Cabinet afforded Mr. Chellgren timely access to the records is a closer question. In 93-ORD-134, this office stated:
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 for a period of several years, such time limitations are virtually impossible to meet.
In an early opinion, this Office recognized:
OAG 77-151, at p. 3. Nevertheless, we have also recognized:
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 and retrieving those records.
93-ORD-134, p. 11, 12.
It is the opinion of this office that the Transportation Cabinet afforded Mr. Chellgren timely access to the records identified in his request. The Cabinet received his request on January 22. Mr. Chellgren was notified that the records would be available for inspection on February 2, and exercised his right of inspection on February 3. The Cabinet thus exceeded the three day statutory deadline by only four days. Given the breadth of his request and the number of documents it encompassed, as well as the apparent difficulty in accessing and retrieving those records, we do not believe that this was an unreasonable delay. Nevertheless, we urge the Cabinet to continue its efforts to streamline existing policies to insure timely access to public records and procedurally correct open records responses.
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.