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 WEDCO District Health Department violated the Open Records Act in the disposition of Aaron L. Wilson's May 16, 2006, request for records relating to an adverse employment decision made by the Department. For the reasons that follow, we find that the Department's disposition of Mr. Wilson's request was only partially consistent with the requirements of the Act.
The following facts are undisputed. Mr. Wilson originally directed his request to the Cabinet for Health and Family Services which timely advised him that the requested records were not in the Cabinet's custody, and, as a courtesy, forwarded his request to the Department for appropriate action. 1 On May 23, 2006, Lenora Kinney, Personnel Officer for the WEDCO District Health Department, notified Mr. Wilson that the requested information would "be available [for review] at 9:30 a.m. on Wednesday, May 31, 2006" at the Department's Cynthiana office. 2 The remaining facts are disputed.
Mr. Wilson states that when he arrived on the afternoon of May 31, Ms. Kinney informed him that he "missed" his appointment and would therefore not be permitted to inspect the requested records because she was unavailable to monitor his inspection. He indicates that he advised her that he had made no appointment, and that the Open Records Act does not permit restrictions on hours of access during the agency's regular office hours. Ms. Kinney produced a file, he continues, noting that she copied some records per his requests, but refused to copy the "Local Health Merit System Summary of Individual Action" form, dated 4/12/06, and the "Application for Employment" submitted by the successful applicant. 3 His objections focus on the Department's insistence that he make an appointment for inspection, the Department's unexplained delay in affording him access to the records, the Department's refusal to copy records he was permitted to inspect, and the Department's failure to adopt and display rules and regulations conforming to the Open Records Act as required by KRS 61.876(1) and (2).
In supplemental correspondence directed to this office following commencement of Mr. Wilson's appeal, Ms. Kinney argues that on the advice of "Bob Nelson's Office of Public Health Personnel . . . an appointment was allowable," and that she made the appointment to insure her presence and consequent ability to assist Mr. Wilson. She further argues that although she offered to reschedule his appointment, he insisted on immediate access to the records and was thereafter afforded the opportunity to inspect all requested records after "employee personal information" consisting of name, address, phone, and social security numbers were redacted. Ms. Kinney indicates that she has since been advised that the employee's name should have been disclosed, but notes that "Mr. Wilson received the employee name within documents copied" for him. She acknowledges that she withheld the employee's application, per instructions received from Mr. Nelson's office, but expresses the belief that he obtained a copy of the Summary of Individual Personnel Actions, 4 after personal information was redacted. Finally, she indicates that "as advised by Mr. Nelson's office, it is not a requirement to post the name of the responsible party for personnel records in the lobby as Mr. Wilson stated . . . ." While the record on appeal does not support Mr. Wilson's claim of willful misconduct, we find that the Department is in error.
Restrictions on hours of access
To begin, an open records applicant cannot be required to make an appointment for inspection of public records. On this issue, the Attorney General has observed:
KRS 61.872(3)(a) mandates public access to agency records "during the regular office hours of the public agency. " In construing this provision, the Attorney General has consistently recognized that any attempt by a public agency to limit the period of time within which a requester may inspect public records places "an unreasonable and illegal restriction" upon the requester's right of access. OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39; 96-ORD-54; 98-ORD-69. In the latter decision, we expressly held that an agency:
98-ORD-69, p. 6. The only recognized exception to this general rule comes into play when the agency has a very small complement of employees or restricted and irregular office hours. See, e.g., 96-ORD-54. Under these circumstances, "the Open Records Act contemplates that the public agency and the requester mutually agree to a time and place convenient to both for review of the public records. " Id. at 5.
02-ORD-094, pp. 4-5; 02-ORD-114 (holding that agency violated KRS 61.872(3)(a) when it required requester to make an appointment for inspection of records thereby improperly restricting requester's hours of access).
Accordingly, we find that the Department was in error when it designated a specific time for inspection of its records. This error is, of course, mitigated by the fact that the Department ultimately permitted Mr. Wilson to inspect the requested records, his "late" arrival notwithstanding. In the interest of avoiding future disputes of this nature, we urge the Department to bear in mind that a requester cannot be required to make an appointment to inspect public records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may be asked to make such an appointment as a reasonable accommodation to the agency. Accord, 02-ORD-094.
Timely access
In a similar vein, we find that the Department's unexplained delay in affording Mr. Wilson timely access to the requested records was improper. With respect to the issue of timely access, this office has observed:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request.
In an early opinion, this Office recognized:
OAG 77-151, at p. 3. . . . We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
93-ORD-134, pp. 11-12; accord, 00-ORD-117.
If the public agency to which the request is directed cannot permit inspection on or before the third business day because the requested records are "in active use, in storage, or not otherwise available," KRS 61.872(5) requires the agency to provide "a detailed explanation of the cause . . . [of the] delay, and to state the "place, time, and earliest date on which the public record will be available for inspection. " The Department responded to Mr. Wilson's request on May 23, but postponed access to the requested records until May 31, some five business days after they should have been available for inspection. Moreover, the Department offered no explanation for this delay. To this extent, its response to Mr. Wilson's request was deficient.
Refusal to provide copies of records inspected
Mr. Wilson's next objection arises from the Department's refusal to provide him with copies of records he was permitted to inspect. We concur with him in his view that such a practice is impermissible. In support, we note that in 05-ORD-201 we observed:
On several occasions this office has held that, "[r]efusal to supply a copy of a record, after inspection has been permitted, is an action inconsistent with KRS 61.874(1) ." OAG 89-40, p. 3; OAG 92-30; 94-ORD-47; 94-ORD-104; 94-ORD-113; 98-ORD-8; 01-ORD-113; 02-ORD-210; 04-ORD-053. KRS 61.874(1) provides:
In construing this provision, the Attorney General has observed:
94-ORD-47, p. 3, cited in 05-ORD-201.
The Department does not invoke any exception to the Open Records Act supporting nondisclosure of the records in dispute in their entirety, nor does the Department argue that the records were inadvertently released for inspection and that it should not be estopped from refusing to provide copies. OAG 83-140; OAG 90-117. Its position is therefore legally untenable. Although the Department may properly withhold portions of the records that qualify for exclusion under KRS 61.878(1)(a), with the exception of the successful applicant's name, we believe it is incumbent on the Department to provide Mr. Wilson with copies of the records it previously permitted him to inspect. Its failure to do so constitutes a violation of the Open Records Act.
Adoption and posting of rules and regulations
Finally, we find that the Department is statutorily required to adopt and post rules and regulations conforming to the Open Records Act and governing access to its records under the Act. KRS 61.876(1) and (2) thus provide:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
In decisions dating back to 1976, this office has held that KRS 61.876(1) and (2) are facially unambiguous, requiring agencies to adopt and post open records rules and regulations, and declared that the failure to do so constitutes a violation of the Act. In a later decision, the Attorney General opined that "the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request," and that the referenced provision "is aimed at protecting the public by requiring a public agency to educate individuals on its particular policies and practices relative to open records." 94-ORD-12, p. 6. The statute is also aimed at protecting the public agency from excessive disruption of its essential functions and its records from damage and disorganization. 99-ORD-141, p. 8. "The spirit of the Act," we have observed, "mandates the broadest possible dissemination of an agency's rules and regulations, although the letter of the law does not specifically designate where the rules must be posted." 93-ORD-83, p. 4.
KRS 61.876(1) "establish[es] a minimum standard for agency compliance." 95-ORD-49, p. 4. An agency:
complies with this provision if it adopts rules and regulations limited to the items set forth in KRS 61.876(1)(a) through (d), or if it adopts more comprehensive rules and regulations supplementing the list of items.
So long as those rules and regulations conform to the provisions of the Open Records Act, and do not fall below the minimum standard set forth in KRS 61.876(1), the agency fully complies with the law. 5 We urge the WEDCO District Health Department to review KRS 61.876(1) and (2) and immediately implement the requirements set forth in those statutes by adopting and posting open records rules and regulations for the office.
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.
Aaron L. Wilson101 Flintroy CourtGeorgetown, KY 40324
Lenora KinneyPersonnel OfficerWEDCO District Health Department P.O. Box 218Cynthiana, KY 41031
Hans H. HerklotzDeputy General CounselOffice of Legal ServicesCabinet for Health and Family Services 275 E. Main Street 5WBFrankfort, KY 40621
Footnotes
Footnotes
1 In correspondence to this office dated June 5, 2006, Assistant General Counsel John H. Walker explained:
The Department for Public Health administers a local health department personnel system for local health Departments. See KRS 211.1755 (3) (d). As a part of its responsibility, the Department's Office of Local Health Personnel reviews the qualifications of applicants for classified positions within the local health department personnel system, and certifies a register from which local health department personnel may choose the applicant having what the local health department deems are the proper attributes for the position. See 902 KAR 8:070 sections 3-5. The Department for Public Health does not maintain the individual personnel records of all employees of local health departments. As local government agencies, the local health departments are responsible for maintenance of personnel records at the health department where the workers are employed. The state agency does not maintain the record of public notices for the fifty-five (55) local health departments which determine for themselves the personnel needs of the local agencies.
2 Mr. Wilson apparently did not send a corrected request to the Department, but instead relied on the forwarded copy of his original request. Any delays in agency response occasioned thereby cannot be imputed to the Department.
3 Mr. Wilson states that the name of the successful applicant was redacted from both the summary and the application.
4 In his June 5 letter, Mr. Walker notes that personnel registers are not available for public inspection per KRS 61.878(1)(a), as construed by the Attorney General in 96-ORD-1. It is unclear whether the referenced Summary is the functional equivalent of a personnel register.
5 The Department may wish to reference 200 KAR 1:020 Section 6 containing a template for open records rules and regulations and adapt the template to its particular needs.