Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Providence subverted the intent of the Open Records Act short of denial of inspection, and within the meaning of KRS 61.880(4), in failing to afford Journal-Enterprise Assistant News Editor Gwen Hicox timely access to "cell phone statements billed to the city between August 2003 and December 2003." For the reasons that follow, we find that the city's undue delay in providing Ms. Hicox with the requested records constituted a subversion of the intent of the Act.
On March 4, 2004, Ms. Hicox hand-delivered a written request to the City of Providence for copies of:
All cell phone statements billed to the city between August 2003 and December 2003 . . . [excluding] individual calls made by and to the aforementioned cell phones [but including] statements listing each cell phone number, total minutes used per cell phone, charges per cell phone per billing, and which city employee was responsible for each cell phone number, plus any overdue charges carried from month to month.
Having received no written response to her request, Ms. Hicox contacted the city by telephone on March 10 and March 11 and was assured by "a city employee" that the information was forthcoming. On March 12, she again called and was advised by a "city employee" that "the information would be ready . . . in 30 minutes. " When Ms. Hicox arrived at the designated place and time, the information "was not ready as promised." One and one-half hours later, the clerk produced information consisting of "statements for several of the cell phones, " four of which were "lumped into one of the statements." Ms. Hicox emphasized the importance of receiving itemized statements by cell phone bills and the clerk acknowledged that the information was available "from Verizon." As of March 18, 2004, the date on which she initiated this appeal, Ms. Hicox had not received "the breakdown information."
In correspondence directed to this office following commencement of The Journal-Enterprise's appeal, Providence City Attorney Richard Peyton advised:
The City of Providence receives a single telephone bill from Verizon, which does not itemize between the various cell phones owned by the City. There is no single statement received by the city which lists the total minutes for each cell phone or charges per cell phone per bill, or which City employee was responsible for each cell phone number, nor any statement of overdue charges carried from month to month.
The City of Providence does have an electronic account with this information on it. However, this electronic account also has personal telephone calls and telephone calls by policeman to confidential informants in criminal investigations. The City of Providence has not prohibited personal telephone calls by cell phone. For some employees, a cell phone is the only way a family member has to contact the employee.
Although he did not cite the statutory exception (s) authorizing nondisclosure, Mr. Peyton maintained that neither "the telephone number for personal telephone calls nor for confidential informant telephone calls is subject to the Open Records search."
Continuing, Mr. Peyton observed:
In order to comply with the request of the The Journal-Enterprise, it will be necessary for the City Clerk to count the number of pages that will be printed from the computer, send the invoice to The Journal-Enterprise, print all of the pages requested, and then remove the information from each page that is not subject to the Open Records request.
This process will take an uncertain period of time. Because of budgetary problems, two members of the City Hall office staff have been cut back to 4 days per week and we are attempting to eliminate most, if not all, overtime.
In closing, Mr. Peyton emphasized that the City has "no intent to delay," and that Ms. Hicox's "request will be satisfied as soon as possible." To date, this office has not been advised that the request has been satisfied. It is our decision that the nearly four week delay in affording The Journal-Enterprise access to the records sought, which is documented in the record on appeal, and any additional delay in excess of the documented delay, was inordinate and constituted a subversion of the intent of the Open Records Act regardless of whether that delay was intentional or unintentional.
KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
Ms. Hicox does not complain that her request has been denied but questions the propriety of the city's delay in honoring that request. Pursuant to KRS 61.880(4), the Attorney General is vested with authority to substantively determine the open records question her appeal raises.
In past open records decisions, the Attorney General has 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.
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.
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.
The facts before us in this appeal are more closely akin to the facts before us in 01-ORD-140. We therefore find that the city's four plus week extension of the deadline for inspection was unreasonable. In so holding, we note that it was not until Ms. Hicox initiated her appeal that the city offered any written explanation of the cause for delay. The city belatedly acknowledged that it could produce records containing the information sought but stated that the process of counting the pages, sending an invoice, and removing protected information would "take an uncertain period of time." Whether the explanation offered was sufficiently detailed to satisfy the first requirement set forth in KRS 61.872(5) is a close question. Clearly, however, it did not satisfy the second requirement set forth in KRS 61.872(5) because it did not indicate the place, time, and earliest date on which the records would be available for inspection. To this extent, the city's response was deficient.
In 04-ORD-044, the Attorney General found nearly identical deficiencies in the City of Providence's response to a request for 2003 purchase orders and invoices relating to communication devices and surveillance equipment. At page 4 of that decision, we noted that "an agency cannot postpone or delay complying with the statutory deadline as the city did here." Continuing, we opined that the city's explanation for delay could "not properly be characterized as detailed" and that "[n]oticeably absent [was] any reference to the 'time, place, and earliest date on which' the requested records would be available for inspection. " 04-ORD-044, p. 5.
We are not persuaded that the difficulties associated with locating records containing the information sought, which the city admits can be retrieved from "an electronic account," reproducing those records, and redacting protected information warrant a four plus week extension of the statutory deadline. If the City of Providence has not already done so, it should immediately respond to Ms. Hicox's request by producing the records sought. Discharge of this duty is required by law and is as much a legal obligation of a public agency as the provision of services to the public, staff reductions notwithstanding. 01-ORD-121, p. 4. If the city elects to withhold any information from those records, 1 it must state the statutory exception upon which it relies and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1). See 04-ORD-044, p. 4 ("Because the City [of Providence] failed to cite the statutory exception upon which it relied in denying [the] request as to the records at issue, and explain how the exception applies to those records, its response was procedurally deficient" ). The requirements of KRS 61.880(1) are not satisfied by vague references to "confidential personal telephone calls" and "confidential informant telephone calls."
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.
Gwen HicoxThe Journal-EnterpriseP.O. Box 190Providence, KY 42450
Sara Stevens, City Clerk Oaklawn DriveProvidence, KY 42450
Jerry Fritz, Mayor216 Stewart StreetP.O. Box 128Providence, KY 42450-0128
Richard PeytonProvidence City Attorney1st Main StreetMadisonville, KY 42431
Footnotes
Footnotes
1 We note that Ms. Hicox did not request "individual calls made by and to the . . . cell phones. " Nevertheless, if this information is redacted from existing public records, the city is statutorily obligated to comply with KRS 61.880(1) by citing the relevant exceptions and providing appropriate explanations.