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 City of Richmond subverted the intent of the Open Records Act short of denial of inspection by failing to afford Jim Crazy Snake Blake timely access to the city's "check register for the last calendar year." It is the opinion of this office that the city's inordinate delay in permitting Mr. Blake access to the check register constituted a subversion of the intent of the Act.
In a letter dated December 14, 2000, former Richmond city attorney David W. Smith responded to Mr. Blake's November 16, 2000 request, advising him as follows:
The City Director of Finance, Ms. Kettler, has indicated to me that because the personnel in the Finance Department are engaged in the process of collecting property taxes, the records you are seeking will not be available until Tuesday, January 16, 2000 [sic].
Mr. Smith did not elaborate, and this appeal followed.
In a supplemental response directed to this office following commencement of Mr. Blake's appeal, Garrett T. Fowles, whose appointment as Richmond city attorney took effect on January 1, 2001, offered additional support for the city's position. He explained that the city would honor its commitment to make the checkbook register available for inspection on January 16, but noted that "[t]he records requested are quite voluminous, have been in active use by the city in preparing year-end payroll and general audits, and may contain privileged information." These facts, Mr. Fowles concluded, accounted for "the delay between the time of the request and the time which Mr. Smith advised that the request would be honored."
On appeal, Mr. Blake asserts that the city's failure to respond to his request within three business days, and to afford him timely access to the record identified in his request, was inconsistent with the spirit, as well as the letter, of the Open Records Act. We agree.
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party whether it will comply with his request. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . 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.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. We reach the same conclusion in the appeal before us.
At page 11 and 12 of 93-ORD-134, the Attorney General reasoned:
"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."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . 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. 1
In an early opinion, this Office recognized:
OAG 77-151, at p. 3. . . . 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.
Whether there was sufficient cooperation among the parties to this appeal is an open question. Clearly, however, there was a failure on the part of the City of Richmond to conform its conduct to the strict legal requirements of the Open Records Act.
Mr. Blake submitted his request on November 16, 2000. The city failed to respond within three business days, and when its response was issued, the response did not conform to the specific requirements set forth at KRS 61.872(5) or KRS 61.880(1). Although the city indicated that the records would be available for inspection some thirty days later, its response did not contain a detailed explanation of the cause of the delay. An agency response that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Open Records Act. 96-ORD-238, p. 3. The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function.
The city has reaffirmed its commitment to make its check register available for inspection on January 16. 2 Nevertheless, some two months have elapsed since Mr. Blake submitted this request. Inasmuch as the requested record was precisely described and readily available within the agency, we find that a delay of this duration was not reasonable, and that the City of Richmond failed to afford Mr. Blake timely access within the contemplation of the Open Records Act. We therefore conclude that the city subverted the intent of the Act short of denial of inspection. KRS 61.880(4).
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 proceedings.
Jim Crazy Snake Blake126 Hager DriveRichmond, KY 40475
Garrett T. FowlesRichmond City AttorneyP.O. Box 250City HallRichmond, KY 40476-0250
Footnotes
Footnotes
1 If the public agency cannot permit inspection on or before the third business day because the requested records are "in active use, in storage or not otherwise available," KRS 61.872(5) requires the agency to provide "a detailed explanation of the cause . . . [of the] delay," and to state the "place, time, and earliest date on which the public record will be available for inspection. "
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 On Thursday, January 18, 2001, Mr. Blake notified this office that the city failed to honor his request on January 16. It is unclear what transpired on that date. Nevertheless, in view of the holding in this decision, we direct the City to make immediate arrangements for him to inspect the check registers.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -