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 inaction of the West Buechel Police Department upon receipt of the request submitted by Ja-Ron Teague for copies of the videotapes "of the incident of August 13, 2004," otherwise identified as Indictment Number 05-CR-2352, violated the Kentucky Open Records Act. By failing to issue a written response containing the statutory basis for denial and a brief explanation of how the cited exception applies to the record withheld in a timely fashion, the WBPD violated KRS 61.880(1). Having failed to satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), the WBPD must honor Mr. Teague's request.
On a standard request form directed to Earl Johnson, WBPD Chief of Police, and Richard Richards, Mayor of West Buechel, on October 5, 2005, Mr. Teague requested one copy each of any responsive videotapes from the police cars of Officers Christopher Cole and Michael Kuzma. Having received no response, Mr. Teague initiated this appeal from the apparent denial of his request by letter dated October 26, 2005. Upon receiving notification of Mr. Teague's appeal from this office, Sergeant Terry Bacon, Acting Chief of Police, responded on behalf of the WBPD, advising this office that "everything has been turned over to the proper authority" without further explanation.
As a public agency, the WBPD is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 1 More specifically, KRS 61.880(1) dictates the procedure that 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-208; 04-ORD-163; 04-ORD-106. By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies 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 mandatory response time of 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 codified at KRS 61.872(4) and (5), neither of which the WBPD invoked here. 2 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7. Public agencies may not elect a course of inaction. Failing to respond in a timely and proper fashion constitutes a clear violation of KRS 61.880(1); compliance with these procedural guidelines is mandatory, and is much of a duty owed by public agencies as the provision of other services to the public. 03-ORD-067, p. 2, citing 93-ORD-125, p. 5.
Noticeably absent from the belated response of the WBPD is any reference to the applicable statutory exception(s) and the requisite brief explanation of how the exception(s) applies. A public agency must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
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; 04-ORD-106; 03-ORD-213. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from 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. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
In short, the WBPD violated the Open Records Act in failing to comply with the mandatory terms of this provision. Accordingly, the WBPD must provide Mr. Teague with copies of any existing records in its custody which are responsive to his request unless the WBPD can satisfy its burden of proof by articulating a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (m). Pursuant to KRS 61.872(3)(b), the official records custodian of the WBPD "shall mail the copies upon receipt of all fees and the cost of mailing." If the WBPD does not have custody or control of any records identified in Mr. Teague's request, the WBPD "shall notify [Mr. Teague] and shall furnish the name and location of the official custodian of the agency's public records" in accordance with KRS 61.872(4). In responding to future requests, the Division should be guided by the longstanding principle that 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-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
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.
Ja-Ron Teague, # 139941Luther Luckett Correctional Complex7D-A-254P.O. Box 6LaGrange, KY 40031
Richard RichardsMayor of West Buechel3713 Marvin AvenueLouisville, KY 40218
Sgt. Terry BaconActing Chief of Police3705 Bashford AvenueWest Buechel, KY 40218
John Casey McCall730 W. Main Street, Suite 200Louisville, KY 40202
Footnotes
Footnotes
1 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
2 On appeal, the WBPD offers no explanation for initially failing to respond. Even assuming the five day response time of KRS 197.025(7) applies to the WBPD rather than the three day response time of KRS 61.880(1), the WBPD did not issue a timely response. See 03-ORD-140.