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 Kenton County Fiscal Court subverted the intent of the Open Records Act, short of denial of inspection, by failing to provide complainant Nathan Smith with timely access to the records identified in his July 11, 2001, request. For the reasons that follow, and upon the authorities cited, we conclude that the delay of some ten to thirteen business days in providing Mr. Smith with copies of those records constituted a subversion of the intent of the Act within the meaning of KRS 61.880(4). 1
In a letter dated July 11, 2001, Mr. Smith requested copies of the following records:
1. Appraisal of the real property located at 501 Main Street, Covington, Kentucky;
2. Closing Statement and Disbursement Statement for 501 Main Street, Covington, Kentucky;
3. All invoices for legal services provided by the law firm of Frost, Brown, Todd LLCC for the period beginning April 30, 2001, through the date you respond to this request.
That letter was received by Kenton County Fiscal Court's Records Custodian, Brandon N. Voelker, on July 12, 2001. Mr. Voelker immediately notified Mr. Smith by telephone that he would be on vacation from July 12 through July 20. In a follow-up letter, dated July 12, Mr. Voelker confirmed this fact, and advised Mr. Smith that he would return to this office on July 23, and that "upon [his] return [he would] comply with [Mr. Smith's] request." Having unsuccessfully attempted to make telephone contact with Mr. Voelker on July 24 2 and July 25, Mr. Smith initiated this appeal, questioning "the reasonableness of basically shutting down access to public records because one person is on vacation, " but indicating that he had "nonetheless waited patiently."
On July 31, 2001, Mr. Voelker notified this office that the fiscal court had furnished Mr. Smith with copies of the records identified in his request. He did not state on what date the records were released. On the same day, Mr. Smith requested that this office proceed to an adjudication of his appeal. Acknowledging that the records had been released, he nevertheless requested review "because of the types of problems [he has] encountered with Kenton County in obtaining records." In response to this office's notification that we would proceed to a review of Mr. Smith's appeal, Mr. Voelker elaborated on the Kenton County Fiscal Court's position in a letter to this office dated August 6, 2001. He explained that both he and Joe Shriver, "who handles all insurance claims for the county and views all the insurance defense legal bills" were out of town in the period from July 13 to July 23, making it "impossible to produce the documents . . . ." Continuing, he observed:
In the present case, Mr. Smith could have reviewed the documents during normal business hours. Obviously, Mr. Shriver and myself are the two persons who know precisely where the documents are located, but any person is free to come and inspect any and all documents. The documents were available anytime during normal business hours.
It was Mr. Voelker's position that the fiscal court discharged its duties under KRS 61.880(1) by notifying Mr. Smith on July 12 that the county would comply with his request upon Mr. Voelker's return.
Asserting that the Open Records Act "does not state that the records must be produced within three days, only the request responded to, "Mr. Voelker identified the issue on appeal as "whether [Mr. Smith] received the documents in a reasonable time. " He relied on OAG 92-117 for the proposition that the Act "does not prescribe a reasonable time within which a requester must be afforded access to public records, " arguing:
The breadth of the request was large, in that a large number of documents were requested. Furthermore, many documents concerning the closing, rested with the attorney who handled the closing for the county. Obviously, it was difficult to retrieve the documents since the two persons who knew the location of many of the documents were out of town.
. . .
Mr. Smith's request was received on July 12, 2001, and responded to July 12, 2001, pursuant to KRS 61.880(1). Based on the facts and circumstances, the fourteen day period prior to Mr. Smith receiving his documents was a "reasonable time. " Especially when you consider the fact that Mr. Smith is free to inspect records during normal business hours.
"Obviously," Mr. Voelker concluded, "I am not trying to subvert Mr. Smith's Open Records Requests." Whatever Mr. Voelker's aim, we believe that his inaction amounted, as a practical matter, to a subversion of the Act's intent.
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to the Kenton County Fiscal Court's apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
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.
(Emphasis added.) Additionally, we note that in OAG 92-117, cited by Mr. Voelker for the proposition that the Act does not prescribe a reasonable time for affording access to public records, this office made abundantly clear, in the sentence immediately following the sentence Mr. Voelker quotes, that the Act "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 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
The record on appeal in OAG 92-117 supported an agency delay of twenty-one days in honoring an open records request. The agency, Department for Social Services, demonstrated that it served one-hundred and twenty-three local offices in one hundred and twenty counties across the state, each of which maintained its own records. Requests for records maintained in local offices were nevertheless processed by and through the Department for Social Services, which was obliged, upon receipt of a request, to locate the records in the appropriate county office, retrieve those records, and review them before releasing them for inspection. Given the broad scope of the request ("any and all records in the possession of the [then] Cabinet for Human Resources upon which [requester's client's] name appears or which may concern her"), the ongoing nature of the Department's investigation into the requester's client, and the need to obtain a copy of the records, and review them upon conclusion of the investigation but prior to making disclosure, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis 'timely access.'" OAG 92-117, p. 5.
The record on the appeal before us does not support a delay of ten to thirteen days. We are not persuaded that Mr. Smith's request was "large" in scope. He requested three specific documents, namely the appraisal, closing statement, and disbursement statement for 501 Main Street, and a group of documents for less than a three month period, namely invoices for legal services provided by Frost, Brown, Todd, LLC. Mr. Voelker acknowledges that both he and Mr. Shriver knew "precisely where the documents were located." We see no reason why they could not have instructed another employee of the Kenton County Fiscal Court from what locations they could be retrieved. Mr. Voelker does not assert that the records contained a mixture of exempt and nonexempt information, necessitating review prior to disclosure for purposes of redaction. 3 The facts before us are markedly different than the facts before us in OAG 92-117.
Ten to thirteen days elapsed between the date of Mr. Smith's request and the date his request was honored. This exceeds the statutory deadline by seven to ten days. It is the opinion of this office that the Kenton County Fiscal Court does not offer a satisfactory explanation for this delay. Although Mr. Voelker indicates that he went on vacation the day after he received Mr. Smith's request, and was therefore unable to comply with the request until sometime after July 23, when he returned, the Attorney General has recognized that in the event the official custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; see also, 96-ORD-185, p. 3 (holding that the Open Records Act "presumes the appointment of a records custodian 'who is responsible for the maintenance, care, and keeping of public records . . .,' KRS 61.870(5), as well as the timely processing of open records requests [(KRS 61.880(1)], and in his absence, the appointment of an alternate to fulfill his duties"). The three day statutory response time is not tolled by the absence of the agency's records custodian. 98-ORD-161, p. 3; see also, 00-ORD-226. It is incumbent on the Kenton County Fiscal Court, as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests. Any other interpretation of the provisions of the Open Records Law is, in our view, "clearly inconsistent with the natural and harmonious reading of KRS 61.870 [ et seq. ] considering the overall purpose of the . . . Law," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), as well as the recognition that "the value of information is partly a function of time." Fiduccia, at 1041.
We do not agree that the fiscal court fully discharged its duties under KRS 61.880(1) by notifying Mr. Smith on July 12 that his request would be honored sometime after the return of its custodian of records from vacation. Mr. Voelker indicates that he notified Mr. Smith that he would comply with Mr. Smith's request upon his return, not that the records had been compiled and were available for inspection. We do not agree that the fiscal court fairly imputed to Mr. Smith the knowledge that, in Mr. Voelker's absence, he was free to inspect the records identified in his request during normal business hours, or indeed that this was a workable compromise solution. We assume that this does not mean that Mr. Smith was free to search through every desk, filing cabinet, box, or storage area utilized by the fiscal court, as well as the offices of the attorney who handled the closing on 501 Main Street, in order to locate the records identified in his request. In our view, the only options available to the fiscal court on July 12 were for Mr. Voelker or Mr. Shriver to instruct other employees where the records could be located, or alternatively, to designate an acting custodian (who is presumed to have some responsibility for the maintenance, care, and keeping of the agency's records) to conduct his or own search for the records, and in either case, to produce them on the third day after receipt of Mr. Smith's request. In an early opinion, this office recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, p. 3. Until such time as the legislature acts to afford relief to agencies from the requirement of disclosure of public records within three days of receipt of a request, we are bound to strictly construe this, along with the other requirements found in the Open Records Law. "Statutes enacted for the public benefit should be interpreted most favorably to the public." Board of Public Instruction v. Doran, Fla., 224 So.2d 693 (1969) cited with approval in Courier Journal and Louisville Times Co. v. University of Louisville Board of Trustees, Ky., 569 S.W.2d 374 (1979).
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.
Nathan Smith22 West Maple AvenueFt. Mitchell, KY 41011
Brandon VoelkerRecords Custodian Kenton County Fiscal CourtCounty BuildingCovington, KY 41011
Garry EdmondsonKenton County Attorney303 Court Street, Room 307Covington, KY 41011
Richard MurgatroydKenton County Judge ExecutiveP.O. Box 792Covington, KY 41011
Barbara Black303 Court StreetCovington, KY 41011
Adam Koenig303 Court StreetCovington, KY 41011
Dan Humpert303 Court StreetCovington, KY 41011
Footnotes
Footnotes
1 KRS 61.880(4) authorizes a complainant to seek review of public agency action when he "feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection . . . . ."
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2 Mr. Voelker disputes Mr. Smith's assertion that he phoned Mr. Voelker on July 24.
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3 We assume this means that the invoices submitted by Frost, Brown, Todd disclose no substantive legal matters subject to redaction under the exemptions cited in OAG 92-14, OAG 92-92, and 96-ORD-129.
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