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 Lynnview violated the Open Records Act in the disposition of the April 28, 2003 open records request submitted by Lynnview Councilperson Carol Hadley who is represented in this appeal by Jason F. McGregor. For the reasons that follow, we find that the City's disposition of Ms. Hadley's request was inconsistent with the requirements of the Act.
In her April 28 records application, Ms. Hadley requested access to eleven categories of records which can, in general, be described as financial and operational records of the City of Lynnview and its police department for discrete periods of time identified in the application. 1 On April 30, 2003, Mayor Lawrence M. Shaughnessy responded to Ms. Hadley's request, advising her that he could not honor her request for the following reasons:
[T]he City of Lynnview does not have a [sic] attorney. I believe that some of the documents you have requested are exempt from the Open Records Act. Once a new city attorney is in place, I will have that person examine your request to see which records you are entitled to examine.
Having received no additional correspondence relative to her request, Ms. Hadley initiated this appeal on May 15, 2003 through her attorney, Mr. McGregor. On her behalf, Mr. McGregor asserts that "[i]n essence, the mayor has forced the City Council members to make Open Records Requests for any records that the city possesses . . . [and] will not provide open access to records to any person other than himself."
In supplemental correspondence directed to this office following commencement of Mr. McGregor's appeal, Patrick Neely, an attorney in the law firm of Wyatt, Tarrant & Combs who has been hired to represent the City since this dispute arose, elaborated on the City's position. He advised:
Mr. McGregor suggested that Members of the Lynnview City Council were forced to make Open Records Requests in order to gain access to certain City documents. However, Mayor Shaughnessy has assured me that the City Council Members never requested to see the documents listed in their Open Records Request. The first time Mayor Shaughnessy became aware that the City Council Members were seeking to gain access to the documents in question occurred when he was served with the Open Records Request. Further, as a long serving member of the Lynnview City Council, Ms. Hadley should already be in possession of most of the documents requested in her Open Records Request.
Nevertheless, the City has agreed to grant Ms. Hadley access to the requested documents. As a member of the City Council, she certainly has the right to view the requested documents. Mr. McGregor and I have agreed that certain portions of the requested police records may need to be redacted in order to protect individual privacy, and we have therefore agreed to work together in order to accomplish that objective.
In closing, Mr. Neely expressed the hope that in the future members of the City Council "will make their Open Records Requests to the Mayor or [Mr. Neely], and will not feel the need to involve the Attorney General." Because it is not altogether clear that all issues on appeal have been resolved by appointment of a new city attorney and discussions between the attorney and the parties to this appeal, we proceed to an adjudication of the apparently unresolved issues.
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. 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 'provi[sion of] services to the public.'" 00-ORD-117, p. 4.
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.
Ms. Hadley submitted her request on April 28, 2003. Mayor Shaughnessy 2 responded within three business days, but that response did not conform to the specific requirements set forth at KRS 61.872(5) or KRS 61.880(1). Although the Mayor intimated that the request might be partially honored in time, his response did not contain a detailed explanation of the cause of the delay, nor did it state the earliest date on which the records would be available. The fact that the City was not represented by an attorney at the time of the request did not relieve the City of its obligations under 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 his request, is, as we have noted, as much a public servant's legal duty as any other essential function." 00-ORD-117, p. 5.
Some thirteen business days elapsed between the date Ms. Hadley submitted her request and the date her attorney, prompted by the City's inaction, initiated this appeal. Although an agreement has apparently been reached that she may inspect redacted copies of the records, the record before us does not reflect compliance with KRS 61.880(1), requiring "a statement of the specific exception authorizing the withholding of the record [or portion of the record] and a brief explanation of how the exception applies to the record withheld." See Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996) (requiring "the custodian of records to provide particular and detailed information in response to a request for documents"). To this extent, we find that the City did not afford Ms. Hadley timely access to the records identified in her request, and that its ultimate "resolution" of the records access issue did not conform to the requirements found at KRS 61.880(1).
Turning to the question of Ms. Hadley's standing as a councilmember to inspect city records, we note that in 96-ORD-110 this office was asked to determine if a local school board member was required to proceed under the Open Records Act in order to access board records. There, we observed:
The Attorney General has consistently recognized that under the Open Records Law, all persons have the same standing to inspect public records and that the purpose for which an individual requests those records is irrelevant. 92-ORD-1136; OAG 89-86; OAG 91-129. "If one person [in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect. " OAG 89-86, at p. 5.
With reference to a city councilperson, in OAG 91-129, this office stated:
This provision has been interpreted to mean that even if records are exempt from the public generally, they should be made available to public agencies, and by extension, public officials, for legitimate governmental purposes. [Citations omitted.]
Note, however, in OAG 92-141, involving a request by members of the school board to review the personnel records, including performance evaluations, of certified and classified employees, this office stated:
Thus, . . . a member of the school board would be entitled to documents of the school system which relate to a legitimate governmental purpose and the board member's public function. If the request is for records which fall outside this area, then the board member's right of inspection would be the same as that of any other citizen under the Open Records Act.
96-ORD-110, pp. 4, 5; see also 96-ORD-177 and 01-ORD-119.
By the same token, we believe that Ms. Hadley should be permitted to inspect city records in the discharge of her official duties and as long as she is fulfilling a legitimate government function. In the interest of preserving her rights should subsequent open records appeals become necessary, she would be well-advised to submit her requests for records in writing to the City's records custodian, but must, thenceforward, be afforded timely access to the records identified in her request. "Timely access" to public records has, in general, been defined as "any time less than three days from agency receipt of the request," OAG 89-300, p. 3. This timeframe may be extended based 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, so long as the records are made available on the earliest possible date. KRS 61.872(5); 93-ORD-134, pp. 11, 12. Under no circumstances may Ms. Hadley be precluded from inspecting city records for an indeterminate period of time and without a legally supportable explanation for delay.
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.
Jason F. McGregorMaze, Berman & Frockt, PLLC504 Republic Building429 W. Muhammad Ali Blvd.Louisville, KY 40202-2345
Lawrence Shaughnessy, MayorCity of Lynnview1241 Gilmore LaneLouisville, KY 40213
Footnotes
Footnotes
1 These records consisted of:
1. Any and all Lynnview Police Department run records, incident reports, and arrest reports for the time period from January 1, 2002 to April 28, 2003.
2. Any and all budgets prepared by or for the City of Lynnview or any and all budgets that are kept or maintained by the City of Lynnview for the previous five (5) years from the date of this open records request.
3. Any and all budgets prepared by or for the City of Lynnview Police Department Chief or any and all budgets that are kept or maintained by the City of Lynnview Police Department for the previous five (5) years from the date of this open records request.
4. Any and all checks written to any individual or entity drawn on any and all City of Lynnview bank accounts for the time period from January 1, 2002 to April 28, 2003.
5. Any and all purchase orders for any expenditure of City of Lynnview tax money for the time period from January 1, 2002 to April 28, 2003.
6. Any and all requests to spend City of Lynnview tax money (other than purchase orders) for the time period from January 1, 2002 to April 28, 2003.
7. Any and all minutes from each City of Lynnview Council meeting for the time period from January 2002 through April 2003.
8. Any and all audiotapes and videotapes of any City of Lynnview council meeting for the time period from January 2002 through April 2003.
9. Any and all audiotapes and videotapes of any City of Lynnview Police Department dispatch for the time period from January 2002 through April 2003.
10. Any and all credit card statements for any purchase made by any City of Lynnview employee, council member or mayor for the time period from January 2002 through April 2003.
11. Any and all time sheets for city employees for the time period from January 2002 through April 2003.
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2 It is not clear whether Mayor Shaughnessy has been designated as official custodian of records for open records purposes. Pursuant to KRS 83A.085(3)(b), it is the city clerk, and not the mayor, who is responsible for "[p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882[.]"
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