Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Board of Medical Licensure violated the Kentucky Open Records Act in denying the request of Yakov G. Drabovskiy, D.O., for a copy of his file "including the request to stop [its] investigation and complaints [that] the Board received." By failing to respond within three business days, the Board clearly violated KRS 61.880(1). Although Dr. Drabovskiy was apparently provided with copies of some or all of the requested records during the course of related litigation, this does not relieve the Board of its duty under the Open Records Act to provide Dr. Drabovskiy with copies of any records in its possession which are responsive to the separate but related request at issue. In relying solely upon Dr. Drabovskiy's alleged possession of the requested records as the basis for its denial, the Board therefore failed to satisfy its burden of proof. Upon receiving "advance payment of the prescribed fee, including postage" as permitted by KRS 61.874(1), the Board must provide Dr. Drabovskiy with a copy of his file and related documentation.
According to Dr. Drabovskiy's original request dated July 29, 2004, the "previous[ly] sent documents, excluding [the Board's] last [two] letters, are not available to [him] now." 1 Having received no response, 2 Dr. Drabovskiy filed this appeal from "the refusal" of the Board "to allow him to inspect" his own records by letter dated October 14, 2004. Dr. Drabovskiy needs a copy of his file "for evaluation and further work, except [the last two] letters [which he] possess[es]." Attached to Dr. Drabovskiy's letter of appeal is a copy of the Board's complaint against him dated September 20, 2001. 3
Upon receiving notification of Dr. Drabovskiy's appeal from this office, C. Lloyd Vest, II, General Counsel, responded on behalf of the Board via facsimile, enclosing a copy of the Board's belated response to Dr. Drabovskiy. 4 According to the Board, the "request is being denied because the information has previously been provided to Dr. Drabovskiy." In support of this position, the Board observes:
It is important to note that Dr. Drabovskiy appealed the Final Order Concerning Emergency Hearing to the Lawrence Circuit Court. The Lawrence Circuit Court granted the Board's Motion to Dismiss and Dr. Drabovskiy appealed to the Kentucky Court of Appeals. The Kentucky Court of Appeals affirmed the Lawrence Circuit Court's order. Dr. Drabovskiy then filed a Motion for Discretionary Review with the Kentucky Supreme Court. The Supreme Court denied discretionary review. Dr. Drabovskiy has now filed a Petition for Writ of Certiorari with the United States Supreme Court.
Dr. Drabovskiy has utilized the information requested in the above-referenced actions.
In reply, Dr. Drabovskiy argues that the Board "wrongfully stated" that the information has already been provided to him. More specifically, Dr. Drabovskiy denies ever receiving any of the documents identified in both his original request and his letter of appeal. 5 According to Dr. Drabovskiy, "the rest of the file is not available to [him] while [he is] in the prison," and he "need[s] another copy of it" to pursue his appeal from the Board's order. In his view, the referenced legal actions are of no relevance in this context since he "could not use the information [t]hat [he] never had."
As a public agency, the Board is required to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106. By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "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 response time codified at KRS 61.880(1). 02-ORD-165, p. 4. "The burden on the agency to respond within 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)[,]" neither of which were invoked by the Board. 02-ORD-165, p. 3. 6
Failing to respond in a timely and proper fashion as the Board initially did here, constitutes a clear violation of KRS 61.880(1). Public agencies are not permitted to elect a course of inaction. As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "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; 04-ORD-114; 02-ORD-187. 7 To avoid future violations, the Board should be guided by this longstanding principle in responding to requests submitted pursuant to the Open Records Act. 8
Turning to the substantive issue presented, the Board's position is not supported by governing precedent. Contrary to the Board's assertion, the fact that Dr. Drabovskiy has already been provided with copies of his file and/or the specified documents does not relieve the Board from its duty to provide Dr. Drabovskiy with copies of any responsive records also in its possession. 04-ORD-059, p. 6, citing 00-ORD-16, p. 4. On several occasions, the Attorney General has expressly rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10. It is only through full disclosure of an agency's records that a requester can satisfy himself that the record is complete. Id.
Based on the foregoing, this office must conclude that the Board erred in denying Dr. Drabovskiy's open records request in its entirety merely because Dr. Drabovskiy apparently received a copy of his file prior to being incarcerated. 9 Having failed to satisfy its statutory burden of proof, the Board must provide Dr. Drabovskiy with copies of any existing records in its possession which are responsive to his request. However, the Board may require "advance payment of the prescribed fee, including postage" pursuant to KRS 61.874(1).
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.
Distributed to:
Yakov G. Drabovskiy, D.O.Federal Correctional InstitutionP.O. Box 6001Ashland, KY 41105
C. Lloyd Vest IIGeneral CounselKentucky Board of Medical Licensure310 Whittington Parkway, Suite 1BLouisville, KY 40222-4927
Footnotes
Footnotes
1 Although Dr. Drabovskiy indicates that he sent an identical letter to the Board on August 23, 2004, the record does not contain a copy of any such letter and our review is restricted to the record.
2 On appeal, the Board does not refute this allegation nor offer any explanation for its failure to respond.
3 Of particular relevance to Dr. Drabovskiy are the "grievances from a local police officer and a local physician regarding" a named doctor, any related complaints, "all the reports and other documents regarding" the initial inquiry conducted by the Board, and the requests by unnamed agencies to withhold any "direct investigative efforts, . . . " referenced in paragraphs four and five of the complaint.
4 Both responses are dated October 26, 2004, and are nearly identical in substance.
5 In addressing factual disputes of this nature, the Attorney General has consistently held:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, citing OAG 89-81. Because the Board is obligated to honor Dr. Drabovskiy's request regardless of whether he previously acquired copies of the requested records via an alternative method or from a different source, resolution of this factual dispute is beyond the scope of our review as well as unnecessary.
6 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
KRS 61.874(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
7 Although the Board did respond upon receiving notification of Dr. Dravobskiy's appeal, a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than to supplant an agency's denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original denial. Id.
8 If the Board elects to withhold any responsive records, or any information contained therein, it must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof withheld, in accordance with KRS 61.880(1). 04-ORD-106, p. 6; 04-ORD-181.
9 Our decision is premised on the assumption that the Board did not provide Dr. Drabovskiy with a copy of both his file and the specified documents in response to an identical request submitted pursuant to the Open Records Act. With respect to duplicative requests for public records, the Attorney General has held that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 99-ORD-107. Common sense dictates that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Id. In such cases, the agency must invoke KRS 61.872(6) and provide an explanation of how the exception applies to the records withheld at a minimum which the Board did not do here. Absent evidence to the contrary, this office must assume that the request which prompted this appeal was the first open records request of its kind submitted by Dr. Drabovskiy. In order to discharge its duty under the Open Records Act, the Board must therefore honor Dr. Drabovskiy's open records request for copies of the specified records.