Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Covington Police Department subverted the intent of the Open Records Act in its disposition of Helen Henson's open records request for copies of three police reports. For the reasons that follow, we conclude that the Department's actions were consistent in part and inconsistent in part with requirements of the Act.
By letter dated November 5, 2003, Ms. Henson submitted an open records request to "Dear Official Custodian of Records," requesting copies of:
#1 Report #03-67558
#2 Report #03-51942
#3 Report #03-21942
By letter dated November 13, 2003, Capt. Danny Miles, Administrator Support Commander, responded to Ms. Henson's request, advising Ms. Henson:
I am this date in receipt of your request to view records in the custody of the Covington Police Department. KRS 61.874(1) states in part. . . "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate, when copies are requested".
The records you requested consist of three (3) pages of documents for a total of .30 cents. Postage will be .37 cents. Please send your check or money order in the amount of .67 cents, made payable to City of Covington, and the requested records can be forwarded.
(Emphasis in original)
In her letter of appeal, Ms. Henson states that on November 20, 2003 she mailed a check for $ .67 to the police department and received the requested records on December 2, 2003. She indicated that the envelope from the agency was "dated Dec. 1, 2003." She asserts the actions of the agency were untimely and asks this office to determine whether the actions of the police department constituted a violation of KRS 61.880(1).
After receipt of notification of the appeal and a copy of the letter of appeal, John Jay Fossett, City Solicitor, provided this office with a response to the issues raised in the appeal. In his response, Mr. Fossett advised in relevant part:
? This appeal appears to be a complaint by Helen Henson that the City of Covington did not respond in a timely manner to her open records request dated November 5, 2003. Ms. Henson's request was addressed to "D. Miles, 1929 Madison Avenue, Covington, KY 41014." Because Captain Miles was on vacation when Ms. Henson's letter was received at the police department, and because it appeared to be a personal letter, it was placed on Captain Miles' desk to be opened by him upon his return from vacation. Captain Miles opened Ms. Henson's letter on November 13, 2003, and drafted his response on the very same day. Captain Miles placed his response to Ms. Henson in the outgoing mailbox at the police headquarters on November 13, 2003. The outgoing mail from Covington police headquarters is taken on a daily basis to the City Hall building for postage, and thereafter transported to the post office. Captain Miles has no control over how quickly this postage procedure takes place.
On November 24, 2003, Captain Miles received Ms. Henson's check dated November 20, 2003, in the amount of $ .67 cents payable to the City of Covington for copying and postage fees in connection with her open records request. On that same date, November 24, 2003, Captain Miles placed the requested records in an envelope addressed to Helen Henson and placed that envelope in the Covington police headquarters outgoing mailbox. According to Ms. Henson, she received the requested records on December 2, 2003.
We are asked to determine whether the actions of the police department violated the Open Records Act. For the reasons that follow, we conclude that the actions of the agency were consistent in part and inconsistent in part with the Act.
Ms. Henson was provided with copies of the records she requested after prepayment of copying costs and postage. Thus, the issue as to records access is moot. 40 KAR 1:030, Section 6. In her appeal, she argues that the police department subverted the intent of the Open Records Act by failing to provide her timely access to the records.
We address first the issue of whether the police department's response to Ms. Henson's request, dated November 5, 2003, was untimely in violation of KRS 61.880(1). That statute requires that a public agency respond to an open records request in writing and within three business days after its receipt. The police department concedes that it did not respond to Ms. Henson's letter within this time limit, but states that because of the way in which the letter's envelope was addressed it appeared to be a personal letter and was placed on Captain Miles' desk unopened. The agency indicated that Captain Miles opened and responded to the request on November 13, 2003, the date he returned from vacation.
This office has recognized that in the event the official custodian of records is absent, "an individual should be appointed to respond to open records requests in a timely fashion." 94-ORD-86, p.4. If Captain Miles is the official custodian of the police department's records, the agency should have made provision for the appointment of an acting custodian to attend to open records requests in his absence. We note in the past Captain Miles has served in that capacity. See, for example, 01-ORD-162. Failure to appoint an acting custodian to handle open records matters in a timely matter and to provide for the uninterrupted processing of open records requests would be inconsistent with the requirements of the Open Records Act. KRS 61.872; KRS 61.880(1).
The police department states that Captain Miles responded to the request on the same day he returned from his vacation on November 13, 2003 and placed his response to Ms. Henson in the outgoing mailbox at the police headquarters on that date. Ms. Henson indicated that the envelope was postmarked November 17, 2003. The police department also indicated that it received Ms. Henson's check for copying fees and postage on November 24, 2003 and on the same date placed the requested records in an envelope addressed to Ms. Henson in the outgoing mailbox at the police headquarters. Ms. Henson states the envelope was postmarked December 1, 2003 and received by her on December 2, 2003.
In its response to the letter of appeal, the police department explained that outgoing mail from Covington police headquarters mailbox is taken on a daily basis to the City Hall building for postage, and thereafter transported to the post office and that Captain Miles has no control over how quickly this postage procedure takes place. A public agency should structure its mailing process in such a manner so as to provide the public with timely access to public records. A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. 02-ORD-165. On this issue the police department should review its mailing policies and procedures to ensure that its open records responses are processed in a timely manner consistent with the requirements of the Act.
Moreover, a requester is not required to identify on the envelope that its contents contain an open records request. The police department stated that the envelope containing Ms. Henson's request was addressed to: "D. Miles, 1929 Madison Avenue, Covington, KY 41014." The agency indicated that it assumed this was personal mail, and thus did not open it. Although not required to do so, Ms. Henson, in order to avoid confusion and this problem in the future, may want to write "open records request" on the envelope, particularly when the envelope is not clearly addressed to the individual in his official capacity as an officer of the Covington Police Department.
Finally, the police department's requirement of prepayment of copying fees and postage prior to mailing the requested records was proper and consistent with requirements of the Open Records Act. KRS 61.874(1) provides:
When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
(Emphasis added.) 03-ORD-098.
A party aggrieved by this decision may appeal it by initiating an 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.