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 Hopkinsville Police Department violated the Kentucky Open Records Act in denying the request of Antonio Johnson for copies of specified investigative reports on the basis of KRS 61.878(1)(h) and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Although the HPD violated KRS 61.880(1) in failing to respond in writing to Mr. Johnson's request within three business days, the HPD properly invoked the cited provisions upon receiving notification of Mr. Johnson's appeal thereby satisfying its statutory burden of proof. With the exception of the noted procedural violation, the HPD is therefore in compliance with the Open Records Act.
By letter directed to Chief of Police Kermit Yeager on April 24, 2005, Mr. Johnson requested copies of records relating to specified cases, advising Chief Yeager that the HPD had not responded to his initial request dated April 12, 2005, as of that date. Having received no response to either request, Mr. Johnson initiated the instant appeal in a letter received by this office on May 3, 2005, attached to which are copies of the subject requests.
Upon receiving notification of Mr. Johnson's appeal from this office, Stephen E. Underwood, City Attorney, responded on behalf of the HPD. According to Mr. Underwood:
The documents requested by Mr. Johnson are exempt from inspection pursuant to KRS 61.878(1)(h). In the case of Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), the Kentucky Supreme Court, in interpreting said exemption[] from the application of the Open Records [Act], confirmed that records such as those being sought by Mr. Johnson from the [HPD] are, in fact, exempt from inspection.
By virtue of his present status, it is apparent that Mr. Johnson has not carried out his sentence from his prior criminal conviction in Christian Circuit Court, and therefore, the requested public records are exempted until after enforcement action is completed.
Further, your attention is also respectfully directed to KRS 17.150(2) as being [] applicable, and exempting from public inspection the records within the scope of the request by Mr. Johnson presently [on] appeal.
Based on the foregoing, Mr. Underwood requests that Mr. Johnson's appeal "be denied, and that it would be the ruling" of this office that the records at issue, "if in the possession of the [HPD]," are exempt from application of the Open Records Act. On appeal, the HPD offers no explanation for the delay in responding. Because the position of the HPD on the merits, as articulated on appeal, is consistent with governing precedent, this office affirms the denial by the HPD of Mr. Johnson's request.
As a public agency, the HPD is obligated 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 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). Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exceptions to this general rule are found at KRS 61.872(4) and (5), neither of which the HPD invoked here. 02-ORD-165, p. 3.
As consistently recognized by the Attorney General, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Public agencies such as the HPD may not elect a course of inaction. Failing to respond in a timely and proper fashion as the HPD initially did here, constitutes a clear violation of KRS 61.880(1). In short, compliance with these procedural guidelines is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public. Id. To avoid future violations, the HPD should review this provision before responding to requests submitted pursuant to the Open Records Act. 1
Turning to the substantive issue presented, the HPD belatedly discharged its statutory duty by citing the applicable statutory exceptions, namely, KRS 61.878(1)(h), and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as well as Skaggs v. Redford, pursuant to which records of the type requested are not subject to inspection until prosecution is completed. In our view, the analysis contained in 04-ORD-234, a copy of which is attached hereto and incorporated by reference, is equally determinative on the facts presented. Accordingly, this office finds no error in the ultimate disposition of Mr. Johnson's request by the HPD.
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.
Antonio Johnson, # 112241Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Chief Kermit YeagerHopkinsville Police Department112 West First StreetHopkinsville, KY 42240
Stephen E. UnderwoodCity AttorneyP.O. Box 999Hopkinsville, KY 42241
Footnotes
Footnotes
1 Although the HPD belatedly complied with this provision, a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a 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 that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the original denial. In denying future requests, the HPD should be guided be guided by these principles.