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 Beaver Dam violated the Open Records Act in partially denying Jeremy Nance's requests for records relating to the city and its fire department. For the reasons that follow, we find that the city failed to afford Mr. Nance timely access to the records identified in his requests. Further, we find that the city failed to comply with KRS 61.880(1) in the ultimate disposition of his requests, and that unless the city can articulate the basis for partially denying those requests, in terms of the requirements of the exceptions cited, it must make full disclosure of the disputed records to him.
On May 28, 2004, 1 Mr. Nance submitted three separate records requests to the City of Beaver Dam seeking access to:
. Invoices, checks, or expense vouchers for items purchased with monies of the 2003 FEMA grant;
. Checks or receipts of payment to Paul Shepherd from January 1, 2004, through May 31, 2004;
. Results and vote totals for candidates in the 2002 and 2004 Beaver Dam Fire Department officers elections, the location where ballots are stored and the names of the person(s) who counted the votes;
. Vote totals for "all matters voted on at the January 2004 meeting of the Department," the location where the ballots are stored, and the names of the person(s) who counted the votes;
. Minutes of all department meetings, both regular and special, and officers and committee meetings, conducted in the period from November 1, 2003, through June 6, 2004.
By letter dated June 10, 2004, Mayor Mary L. Pate notified Mr. Nance that the city "will respond in due course [and] confer with our attorney concerning what, if any, records that you are entitled to receive." Some fifteen days later, City Clerk Brenda Dockery notified Mr. Nance that she was "in [the] process of gathering the information (that is available)." On July 22, 2004, Mr. Nance initiated this appeal, questioning these unexplained delays in disclosure of the requested records.
In supplemental correspondence directed to this office following commencement of Mr. Nance's appeal, Mayor Pate elaborated on the city's position. She explained:
The requests have been sent directly to the Mayor, not the official custodian of the public agency's records. The custodian (City Clerk) of the records does have an original form that she requests be completed by requester. However, this process has not been followed by Mr. Nance. The request forms the City has been receiving is not the official form of the City. Mr. Nance has been advised that the City Clerk is the official record keeper per letter dated 6/25/04.
It took several days and hours for our Volunteer Fire Department to gather this information. Due to the amount of ongoing requests, our attorney's advice was to forward this to his office for his review. We are waiting for the review to be completed before forwarding the information to Mr. Nance.
On July 29, 2004, Beaver Dam City Attorney A.V. Conway, II, provided this office with a copy of a letter to Mr. Nance to which he attached copies of the requested records. Mr. Conway indicated that the city had "deleted the 'code on the doors, ' pursuant to KRS 61.872(6) . . . [and] reference to an ongoing criminal investigation now being conducted by the Kentucky State Police pursuant to KRS 61.878(1)(h)." While we commend the city for its decision to honor, at least in part, Mr. Nance's request, we find that the failure to provide a detailed explanation of the cause for the delays in affording him access to the requested records, and to explain how the exceptions relied upon applied to those portions of the requested records withheld, constituted a violation of the Open Records Act.
Examining first the issue of timely access to public records, we note that in 93-ORD-134, a copy of which is attached hereto and incorporated by reference, the Attorney General held that a delay in providing access to public records of some four months constituted a violation of the Open Records Act, notwithstanding the broad scope of the request, inasmuch as the Act generally contemplates records access within three business days of receipt of a request. In 00-ORD-159, we determined that a one month delay violated KRS 61.880(1), absent a reasonable explanation for that delay, given the limited scope of the subject request. Mr. Nance submitted his requests on or before June 8, 2004. 2 The city released the requested records to him on July 29, 2004. Well over a month elapsed between the date on which his request was submitted and the date on which his request was partially honored.
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.
Here, we find that the record on appeal does not support the one plus month delay. Mr. Nance's request implicates financial records for a period of approximately one year, fire department voting records generated in two officers elections and at a meeting conducted in January 2004, and minutes of fire department meetings for a period of seven months. Given the relatively narrow parameters of his request, by time frame as well as subject, we believe that a delay of this duration was unwarranted, particularly in light of the fact that the city offered no written explanation for that delay. 3
Turning to the second violation noted above, we find that although the City of Beaver Dam complied with KRS 61.880(1) to the extent that it invoked two exceptions arguably authorizing nondisclosure of certain records implicated by Mr. Nance's request, the city did not fully comply with this provision because it failed to provide a brief explanation of how the cited exceptions apply to the records withheld. KRS 61.880(1) provides, in part:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [W]e cannot agree [that a] . . . limited and perfunctory response to . . . [a] request even remotely complie[s] with the requirements of the Act--much less that it amount[s] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has stated:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U. S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6.
At page 12 of 00-ORD-10, the Attorney General further opined:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests,] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
Here, we find that the City of Beaver Dam did not meet its statutory burden of proof in partially denying Mr. Nance's request. Mr. Conway indicates that the city "deleted . . . reference to an ongoing criminal investigation now being conducted by the Kentucky State Police pursuant to KRS 61.878(1)(h)," but does not indicate which records, or portions of records were withheld on this basis or indicate how those records, or portions of records, qualify for exclusion as "[r]ecords of law enforcement agencies involved in administrative adjudication that were compiled on the process of detecting or investigating statutory or regulatory violations . . . the disclosure of [which] would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administration adjudication." In order to properly invoke KRS 61.878(1)(h), public agencies must establish that the records withheld satisfy each of the three criteria in that exception. See 03-ORD-226 (enclosed) . As noted above, the mere invocation of an exception, without an adequate explanation of how the exception applies to the record or records withheld, does not satisfy the agency's burden of proof. Although the city's reliance on this exception may not have been entirely misplaced, it failed to provide sufficiently detailed information in response to Mr. Nance's request. The city may only withhold those records, or portions of records, if it can articulate the reasons for doing so in terms of the requirements of KRS 61.878(1)(h).
This analysis applies with equal force to portions of records containing "the code on the doors" which the city withheld, without explanation, pursuant to KRS 61.872(6). 4 It is apparently the city's position that disclosure of the code will impose an unreasonable burden, within the meaning of KRS 61.872(6), because it will require the installation of a new code. Although this construction of KRS 61.872(6) is legally supportable, the city provides no explanation of how the provision applies to that portion of any record withheld, much less the clear and convincing evidence of an undue burden which the statute requires. Again, we find that the city may continue to withhold portions of records containing "the code," only if it can articulate the basis for doing so in terms of the requirements of KRS 61.872(6) as construed in 95-ORD-121, a copy of which is attached hereto and incorporated by reference.
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.
Distributed to:
Jeremy Nance801 Valley View DriveBeaver Dam, KY 42320
Mary Pate, MayorCity of Beaver DamP.O. Box 408Beaver Dam, KY 42320
A.V. Conway, II, City AttorneyCity of Beaver Dam124 W. Union StreetP.O. Box 25Hartford, KY 42347
Footnotes
Footnotes
1 The city disputes Mr. Nance's assertion that he submitted his requests on May 28, insisting that the requests "were all received in one envelope on [June 8, 2004] in our overnight drop box."
2 See note 1, above.
3 The fact that Mr. Nance did not utilize the city's preferred open records request form does not alter our conclusion. This office has long disapproved the required use of preprinted forms. See, e.g., 03-ORD-086 (enclosed) citing OAG 76-588 and 95-ORD-33. As long as Mr. Nance's requests conformed to the requirements of KRS 61.872(2), the city was obligated to treat them as it would requests submitted on its preferred form.
4 KRS 61.872(6) provides, in full:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.