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 Paris-Bourbon County Joint Planning Commission subverted the intent of the Open Records Act, short of denial of inspection, in the disposition of Preston S. Cecil's July 24, 2002 request for records generally described as development plans and planning commission meeting minutes from 1980 to the present. For the reasons that follow, we affirm the Commission's disposition of Mr. Cecil's request.
On behalf of his client, Rudd Enterprises, Mr. Cecil submitted an open records request to Jim Shaw, Administrator of the Paris-Bourbon County Joint Planning Commission, on July 24. The requested records were identified as:
1. All development plans, both preliminary and final, submitted to the Planning Commission for the development and approval of Houston Creek Drive including, but not limited to, plans for Houston Creek Villas, Bourbon Hills and Houston Creek Townhomes that show Houston Creek Drive from 1980 to the present.
2. All planning commission meeting minutes discussing the approval and development of Houston Creek Drive including, but not limited to, those minutes that discuss plans submitted for Houston Creek Villas, Bourbon Hills and Houston Creek Townhomes from 1980 to the present.
3. All development plans, both preliminary and final, submitted to the Planning Commission for the development and approval of Bourbon Hills Drive including, but not limited to, plans for Houston Creek Villas, Bourbon Hills and Houston Creek Townhomes that show Bourbon Hills Drive from 1980 to the present.
4. All planning commission meeting minutes discussing the approval and development of Bourbon Hills Drive including, but not limited to, those minutes that discuss plans submitted for Houston Creek Villas, Bourbon Hills and Houston Creek Townhomes from 1980 to the present.
In a letter dated July 26, 2002, Commission counsel Sannie Overly responded to Mr. Cecil's request, advising him as follows:
[D]ue to the volume of material to be searched, the age of the documents requested and the location of the documents, the results of our review of the public records will not be completed before August 26, 2002. Upon completion, I will notify you of the cost of copying and mailing the requested information. Then, upon receipt of those fees, we will forward the documents that we determine to be responsive to your request.
This appeal followed.
In his letter of appeal, Mr. Cecil explains that he represents Rudd Enterprises in an action filed in Bourbon County Circuit Court concerning the opening of a roadway, and that his request was made in furtherance of that action. Mr. Cecil references "the letter sent to Jim Shaw as custodian of records for the planning commission attached hereto," indicating that he received a response from Ms. Overly on behalf of the Commission and "a letter from [Paris] City Attorney[, Henry Watson III,] that states that preliminary development plans and other items are exempt from production under the Open Records Act. " Mr. Cecil did not furnish the Attorney General with a copy of the written request that precipitated the City Attorney Watson's response. 1 Mr. Cecil now frames the issues on appeal as:
1. The failure to produce the items set forth in Mr. Watson's letter dated July 23, 2002; and
2. The failure to timely produce the material requested from the planning commission as set forth in Rudd Enterprise's letter to Mr. Jim Shaw.
Mr. Watson's letter references Mr. Cecil's July 18, 2002, request "addressed to Ron Vanover, City Engineer of the City of Paris," a copy of which is "enclosed herewith." The request that appears to have been enclosed is, however, a July 18, 2002 request from Mr. Cecil to James Shaw. Because Mr. Cecil did not provide us with a copy of his written request to Mr. Vanover, 40 KAR 1:030 Section 1 precludes the Attorney General from reviewing the first of these issues. 2 With regard to the second issue, we find that given the breadth and nonspecificity of his request, the volume of records implicated, and the difficulty in locating and retrieving them, a one month delay in affording Mr. Cecil access to the requested records was not inordinate. Further, we find that the Commission complied with KRS 61.872(5) by providing Mr. Cecil with a detailed explanation of the cause for delay and advising him that the records would be available for mailing, upon prepayment of copying and postage charges, on August 26, 2002.
In a recent open records decision, the Attorney General observed:
"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). [T]he 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:
(Emphasis added.) Additionally, we note that in OAG 92-117 this office made abundantly clear 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.
01-ORD-140, pp. 3, 4; compare 02-ORD-62; 02-ORD-142.
The record on appeal in OAG 92-117, cited above, 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.
Similarly, the record on appeal in 02-ORD-62 supported an agency delay in honoring an open records request beyond three business days. In that decision, the Jefferson County Public School District was asked to produce twelve categories of records generated in the period from January 1, 2001 to the present, and three additional categories of records generated in the period from January 1, 1997 to the present. We affirmed the District's actions, concluding that it discharged its statutory duty by affording the requester timely access to the wide range of records identified in the request. See also, 02-ORD-142 (given the broad parameters of the request, Eastern Kentucky University satisfied the requirements of KRS 61.872(5) by explaining the problems associated with retrieving most of the records requested and designating a date certain, one month after request was submitted, when the records would be available for inspection) .
Conversely, the record on appeal in 01-ORD-140, cited above, did not support a delay of ten to thirteen days. The requester identified three specific documents which he wished to inspect, and the records custodian acknowledged that he knew "precisely where the documents were located." The records custodian did not maintain that the records contained a mixture of exempt and nonexempt information, necessitating review prior to disclosure for purposes of redaction. Thus, we concluded that the agency did not offer a satisfactory explanation for the ten to thirteen day delay, and that its disposition of the request was inconsistent with the principle that "the value of information is partly a function of time." Fiduccia at 1041; see also 93-ORD-134; 99-ORD-44; 00-ORD-117.
Here, as in OAG 92-117, 02-O RD-62, and 02-ORD-142, we find that the record on appeal supports the estimated one month delay. Mr. Cecil requested copies of all preliminary and final development plans submitted to the Commission for Houston Creek Drive and Bourbon Hills Drive, "including, but not limited to, plans for Houston Creek Villas, Bourbon Hills and Houston Creek Townhomes," and the minutes of meetings at which any of these plans was discussed, for a twenty-two year period. Given the broad parameters of his request, by time frame if not by subject, we believe that the Commission would have satisfied its obligation under the Open Records Act by affording Mr. Cecil the opportunity to conduct his own on-site search for responsive records. 99-ORD-154 (agency discharged its duty under Open Records Act by permitting requester to review its minutes in order to locate those that contained information he sought). Instead, and in accordance with his wishes, the Commission agreed to conduct a search of twenty-two years of development plans and meeting minutes in order to locate those records broadly identified in his request, and to make full disclosure of all records located. Under these circumstances, we find that the disclosure date of August 26, 2002 was reasonable.
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.
Preston Scott Cecil101 St. Clair StreetFrankfort, KY 40601
James ShawPlanning & Zoning AdministratorBourbon County CourthouseParis, KY 40361
Sannie OverlyOverly & Johnson, LLC6 East Fourth StreetParis, KY 40361
Footnotes
Footnotes
1 The record on appeal does not contain a written request from Mr. Cecil to Mr. Vanover.
2 40 KAR 1:030 Section 1 states that the Attorney General "shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
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