Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Powell County Industrial Development Authority, Inc.'s response to the open records request of Joe H. Neal was in violation of the Open Records Act.
By letter dated January 31, 2000, Mr. Neal requested to inspect the following records:
1. All records of the corporation voting and discussing concerning the acquiring the real property of the estate of Nannie Neal. (deceased) .
2. All real estate appraisals made of the real property auctioned by the John Brewer real estate agency for the [heirs] of Nannie Neal (deceased) . before or/and after acquired thru buying for the Powell County Industrial Development Authority.
3. List of all The Powell County Industrial Development [Authority,] Inc. members that traveled to the site of the Nannie Neal estate to assess the location, value or for any other reason.
4. Any records of the discussing or voting concerning the Nannie Neal Estate real property by the members of the Powell County Industrial Development Authority, Inc.
5. Records that give all members, sectarians ceo's advisory members and attorneys names from January 1, 1996 to present date.
6. All surveys and engineers plat of the Nannie Neal (deceased) real property squired thru a third party or any engineer's plat concerning the property made since January 1, 1996 to present date.
7. All deeds of concerning any real property owned by the estate of Nannie Neal.
8. All correspondence between any persons representing the Powell County Industrial Development Authority, Inc. and the State of Kentucky concerning loans grants or assistance of any kind from the State of Kentucky for the development of an Industrial Park using any of the real property owned by the Nannie Neal Estate at the time of her death in January 1996 to present date.
9. All correspondence between any person representing the Powell County Industrial Development Authority, Inc. and any Agency of the US Government concerning loans, grants, or public monies or assistance of any kind for the development of an industrial site or park using any of the real property owned by the Nannie Neal estate at the time of her death in January 1996 to present date.
By letter dated February 3, 2000, Deborah Tipton, Secretary/Treasurer of the Authority, advised Mr. Neal:
I have received your letter dated January 31, 2000. You have requested a substantial amount of information. It will take sometime to compile your request.
We will respond to your request within thirty days.
By letter dated February 9, 2000, Ms. Tipton provided a substantive response to Mr. Neal's open records request, stating:
1. The Neal property was mentioned in the minutes first August 1, 1996 as follows:
2. This tract alone was never appraised. It is combined as a total with the Barnett tract.
3. See minutes dated August 1, 1996, above for the committee that viewed the property.
4. The idea resurfaced again on January 21, 1999. The minutes that date contained:
5. Members 1996: Ron Rousey, chairman; George Elkins, vice chairman; Steve Hale, Sec./Treas.; Floyd Anderson, Jim Potts, and Polly Tuttle. Advisory directors 1996: John Brewer, David Baker, Bill Rose, Delbert Brown, Forest Meadows, Pat Ashley, and Bob Hatton.
6. See attached.
7. Deeds are on record at Powell County Clerks' office.
8. No formal plans were made to develop property until Industrial Authority owned real estate. We are in early stages of applying for grant to develop. These records are being developed now and are not available at this time.
9. Again Powell County Economic Director, Craig Dawson is working on this and is searching for grant monies at this time.
In his letter of appeal, Mr. Neal argues that the Industrial Authority refused to allow him to inspect its records and instead provided "an overview of certain meetings and an overview about How the Powell County Industrial Authority Inc. is for the economy of Powell County."
After receipt of Mr. Neal's letter of appeal, Steve Hale, Chairman, on behalf of the Industrial Authority, provided this office with a response to the issues raised in the appeal. In his response, Mr. Hale stated that it was never the agency's intention to withhold information from Mr. Neal and that it felt that it had supplied him with the information he was seeking. To show further good faith, he indicated that he was mailing copies of all minutes where any mention of the "Clay City Industrial Park" was made.
We are asked to determine whether the response of the Industrial Authority was consistent with the requirements of the Open Records Act. For the reasons that follow, we conclude that although certain portions of the response were procedurally deficient, it was substantially in compliance with the Act.
We are asked to determine whether the response of the Industrial Authority was consistent with the requirements of the Open Records Act. For the reasons that follow, we conclude that although certain portions of the response were procedurally deficient, it was substantially in compliance with the Act.
The first issue we address is whether Mr. Neal was provided timely access to the requested records. This office has, on numerous occasions, addressed the issue of timely access to public records. In 93-ORD-134 we recognized 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.
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 record.
The Industrial Authority timely responded within three days, advising that because he had requested a "substantial amount of information," it would take some time to compile the requested records. KRS 61.880(1). In this response, dated February 3, 2000, the agency further advised that it would respond within thirty days. Because the requested records were not immediately available for inspection, we believe it was also incumbent on the agency to provide a detailed explanation of the cause of the delay. 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.
Although a request may involve a substantial number of records, a month is a lengthy time in which to provide access to public records, without a detailed explanation for such a delay. However, the failure of the Industrial Authority to explain why it would take 30 days to make the records available was mitigated by the fact that the agency, on February 9, 2000, provided Mr. Neal with a substantive response to the request for information and records, only six days after its initial response on February 9, 2000.
In his letter of appeal, Mr. Neal argued that the agency provided him with an overview of certain meetings, rather than provided copies of the minutes of the meetings. In its response to the letter of appeal, the Industrial Authority indicated that copies of all minutes relative to his request would be mailed to him.
In addressing this issue, we would point out that Mr. Neal's request included requests for both information and records. The Attorney General has long recognized that a public agency is not obligated to honor a request for information as opposed to a request for specifically described records. This position is premised on the notion that open records provisions address only the inspection of records and do not require public agencies to provide or compile specific information to conform to the parameters of a given records request.
98-ORD-41.
Notwithstanding that some of his request was for information, the agency responded to the request by providing both records and information. For example, it compiled a list of Industrial Authority members that traveled to the site of the Nannie Neal estate to assess the location and provided summaries and quotes from the minutes which related to his request. Moreover, as noted above, the agency, in its response to the letter of appeal, indicated that it had provided Mr. Neal with a copy of all minutes that were related to his request. Thus, this portion of the appeal is moot as the agency provided Mr. Neal with copies of the minutes that related to his request. 40 KAR 1:030, Section 6, provides:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
In response to Mr. Neal's request for all deeds of any real property owned by the estate of Nannie Neal, the Industrial Authority advised that deeds are on record at the Powell County Clerk's office.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records
As required by KRS 61.872(4), an agency must affirmatively state if it does not have the record requested. 99-ORD-95. If it does not have the record, it must furnish the name and location where the record is maintained. The agency's response was deficient in not affirmatively stating whether or not it had the requested deeds. Assuming it did not have copies of the deeds, the Industrial Authorities complied with KRS 61.872(4) by notifying Mr. Neal where the requested deeds were maintained and could be located.
Finally, we address the issue as to whether the Industrial Authority properly denied Mr. Neal's request for all correspondence between persons representing the Industrial Authority and either the State of Kentucky or any agency of the United States government concerning loans, grants, or public monies for the development of an industrial park using any of the real property owned by the Nannie Neal estate, from January 1996 to the present.
The agency denied this request on the basis that it was in the process of applying for grants and monies and, as these records were in the process of being developed, they were not available at this time.
KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Applications for grants and monies for the development of an industrial park that are ongoing and have not been completed could be properly withheld from disclosure under KRS 61.878(1)(i) and (j) as preliminary records. Applications that have been completed and reflect final agency action would be subject to disclosure, unless otherwise exempt under an applicable exception of the Open Records Act. If the agency denies access to all or any portion of the completed applications, it is required to 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," as required by KRS 61.880(1).
The failure of the Industrial authority to cite the exception upon which it relied for denying access to the applications was inconsistent with the requirements of KRS 61.880(1).
In addition, KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Accordingly, if any portion of an application contains information that is excepted from disclosure under KRS 61.878(1), the agency may mask or redact that information and make the remainder of the document available for inspection.
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.