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 Louisville Housing Services, Inc., violated the Open Records Act in responding to Linda D. Roberts's June 1, 1999, request for various documents relating to LHS. For the reasons that follow, we conclude that LHS's response violated the law.
On June 1, Ms. Roberts requested access to, and copies of:
1. All audits conducted of Louisville Housing Services, Inc., from fiscal year 1991 to the present.
2. All annual reports of LHS from 1990 to the present.
3. Any annual or other reports prepared by LHS as condominium project manager of Highlands Village, including any reports concerning management fees received by LHS and any reports concerning any capital reserve accounts.
4. All documents pertaining to LHS Board Meetings, including all Board minutes, attachments, Treasurer's reports, and other reports, agendas, and other records from 1989 to the present.
5. IRS form 990 filed by LHS for years 1989 to the present.
6. All certified financial statements submitted to Citizens Fidelity Mortgage Company, now known as PNC Bank, or the City of Louisville Department of Housing and Urban Development, related to the Highlands Village debt.
In a response dated June 4, 1999, D. Bryan Wickens, an attorney representing LHS, advised Ms. Roberts that because of the large number of documents implicated by her request, LHS would require "a substantial amount of time to locate and/or review [the documents]" to determine if her request should be honored. In addition, Mr. Wickens asserted that given the presence of ongoing litigation between Ms. Roberts's client, Eric Anderson, and LHS, her request was inappropriate. Relying on KRS 61.878(1), he maintained that "the Kentucky Open Records Act is not the appropriate vehicle by which to obtain the information sought in [her] request and may not be used to avoid the civil discovery rules." 1 Dissatisfied with this response, Ms. Roberts initiated an open records appeal.
In her letter of appeal, Ms. Roberts challenges LHS's interpretation of KRS 61.878(1). She observes:
KRS 61.878(1) provides that one cannot use the Open Records Act to obtain records which would not be discoverable under the Rules of Civil Procedure. It does not state that once litigation has been commenced that the litigants no longer have any Open Records rights. The right to discovery of these items has not been abridged in any way: the Court has not issued any stay of discovery, nor has the time for requests for production of documents expired.
In support of her position, Ms. Roberts cites OAG 89-65, 95-ORD-27, and 97-ORD-98. In closing, she expresses concern about Mr. Wickens's statement that LHS would require "a substantial amount of time to locate . . . the requested documents," noting that the Open Records Act mandates timely access to public records.
Upon receipt of this office's notification of an open records appeal, Mr. Wickens submitted a supplemental response. In it, he argued that Ms. Roberts's appeal was premature, and should be dismissed because LHS's June 4 response to her request did not constitute a denial. Alternatively, he argued that Ms. Roberts should not be permitted to use the Open Records Act as a means of circumventing the discovery process. Mr. Wickens distinguishes the opinions upon which she relies, commenting:
At the time OAG 89-65 was handed down, the litigation exemption cited by LHS and found at KRS § 61.878(1) did not even exist. This particular exemption did not become part of the Act until 1992, three (3) years after OAG 89-65 was rendered. Also, the agency at issue in OAG 89-65 chose not respond in any fashion to the Open Records Request made therein. LHS, however, did respond to Ms. Roberts' Request in accordance with the Act. Additionally, nowhere in OAG 89-65 is it indicated whether the agency or party requesting the documents were parties to the underlying litigation.
The holding reached in OAG 89-65 was quite limited. Specifically, the author held that an agency must respond (not produce the requested documents) to a request made under the Act even in the presence of litigation. In other words, the agency cannot simply choose to ignore the provisions of the Act because of the existence of litigation. On June 4, 1999, LHS responded to Ms. Roberts' Request just as OAG 89-65 requires and has not yet denied access to the documents sought by Ms. Roberts. Thus, LHS has complied with the requirements of the Act and applicable authority construing its provisions.
Ms. Roberts also cites OAG 95-ORD-27 in support of her position. A review of OAG 95-ORD-27 again reveals no indication that the agency and requesting party therein were both parties to the underlying litigation as is the case in the present matter. (Footnote omitted.) Moreover, the litigation exemption found at KRS § 61.878(1) is never mentioned in OAG 95-ORD-27. Rather, the decision reached in OAG 95-ORD-27 relies upon the language found in OAG 89-65, which, as discussed above, held only that the agency must respond to an Open Records Request just as LHS responded to Ms. Roberts' Request.
Finally, Ms. Roberts cites OAG 97-ORD-98. In this case, both the individual making the request and the agency were parties to litigation. Once again, the agency involved in OAG 97-ORD-98 chose not to respond to the open records request. Instead, the agency relied upon the litigation exemption found in KRS § 61.878(1) and determined that it would respond pursuant to FRCP 34(b), which gave the agency 30 days to respond rather than three (3) days under the Act. As was the case in OAG 89-65, the Attorney General in OAG 97-ORD-98 held only that the agency violated the Act by failing to respond directly to the requesting party within three (3) days as required by the Act. LHS did respond to Ms. Roberts' Request. Therefore, LHS adhered to the provisions of the Act and applicable decisions thereunder.
Mr. Wickens emphasized that LHS's actions relative to Ms. Roberts's requests were entirely consistent with the narrow holdings in these decisions insofar as the agency promptly responded to that request. Acknowledging that LHS "has not yet made a final determination as to whether to deny or approve Ms. Roberts's Request . . .," Mr. Wickens urged this office to disapprove her attempts to avoid the rules of civil discovery "and obtain documents that [her client] more properly should have requested via discovery in the litigation and would otherwise not be entitled due to the impending trial date in the litigation."
It is our opinion that LHS interprets the cited decisions, and their progeny, too narrowly. In a recent open records decision, the Attorney General construed the language which appears at KRS 61.878(1) in the context of a public agency's denial of an records request submitted by a party to litigation with the agency. There we held that although "the Attorney General has discouraged the use of the Open Records Act as a substitute for discovery, we are bound to follow the line of opinions issued by this office from 1982 to the present holding that the presence of litigation between the requester and the public agency does not suspend the agency's duties under the Act." 98-ORD-39, p. 2. It is instructive to quote at some length:
In OAG 82-169, this office considered the propriety of the Jefferson County Public Schools' denial of attorney John W. Potter's open records request on the grounds that school system was involved in litigation and the records would not be discoverable under the civil rules. At page 2, we rejected the school system's argument, commenting:
Elaborating on this view, in a subsequent opinion the Attorney General observed:
OAG 89-53, p. 4. Shortly after OAG 89-53 was issued, we confirmed our position, asserting:
OAG 89-65, p. 3; see also, 95-ORD-27; 97-ORD-98.
These open records decisions were accompanied by the following cautionary language:
OAG 89-65, p. 3. Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds. Unless the [requested] records . . . fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), they must be disclosed.
98-ORD-39, pages 2 through 4. See also 98-ORD-87; 99-ORD-64; compare 98-ORD-15 (holding that attorney representing party incivil litigation against public agency could not obtain through Open Records Act nondiscoverable documents protected by attorney-client privilege). As this line of authority demonstrates, the cautionary language in OAG 89-65 has never been construed to relieve the agency of its duties under the Open Records Act relative to disclosure of nonexempt public records, as well as the required KRS 61.880(1) response. Instead, the Attorney General has recognized that it is a poor substitute for discovery, and that the courts may well frown on its use in lieu of discovery. 2
With particular reference to the language found at KRS 61.878(1), upon which LHS relies, the Attorney General has construed this provision to mean that:
should an agency deny a request, submitted by a party to a civil action , for properly excludable public records which are related to the action , and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion. . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
95-ORD-18, p. 4 (emphasis in original). Under this line of authority, LHS must release the requested records to Ms. Roberts unless those records are otherwise exempt or nondiscoverable.
The fact that a trial date was imminent at the time Ms. Roberts made her request does not alter our conclusion. CR 34.02(2) establishes a thirty day time limit for response to a discovery request, but stipulates that "the Court may allow a shorter or longer time." Thus, Ms. Roberts would not have been entirely foreclosed from serving discovery requests. She elected instead, and apparently with the knowledge of the associated pitfalls and at the risk of incurring the court's ire, to proceed under the Open Records Act, noting that "the Court has not issued a stay of discovery, nor has the time for requests for production of documents expired." We share her view that if she was entitled to obtain these records by means of civil discovery, she was also entitled to obtain them by means of the Open Records Act.
Our review of the list of records identified in her June 1, 1999, request discloses few, if any, that should not be made available to her under the terms and conditions of the Open Records Act. With the exception of the loosely described "other reports . . . and other records" appearing in item 4 of her request, which may qualify for exclusion under one or more of the exceptions to public inspection, they are financial and operational records of a public agency which are nonexempt. Indeed, such records are generally characterized as being "uniquely of public concern." OAG 90-30, p. 3. Accordingly, we conclude that LHS must immediately arrange for Ms. Roberts to inspect and receive copies of the records identified in her request. Consistent with the opinion expressed in OAG 89-65, LHS may deny her access to records identified in her request only if the agency can articulate a basis for denial in terms of the requirements of the statute.
In closing, we note that although LHS has acknowledged the "obligations and/or duties imposed on it by the Act," it has not complied with the requirement of timely access in either its original response to Ms. Roberts's request or subsequent correspondence pertaining thereto. On this issue of timely access, the Attorney General has observed:
Subsection 1 of [KRS 61.880] requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." 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.
. . .
"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 page 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.
. . .
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.
. . .
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. 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.
93-ORD-134, p. 10, 11, 12. In both its original and supplemental responses, LHS indefinitely postponed access to public records. Given the breadth of Ms. Roberts's requests, LHS could properly rely on KRES 61.872(5) to extend the deadline for disclosing records beyond three days, but was required to provide "a detailed explanation of the cause . . . for further delay and [to state] the place, time, and earliest date on which the public records . . ." would be available for inspection. KRS 61.872(5) (emphasis added). To the extent that LHS failed to comply with these requirements, its response was deficient.
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.
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