Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Bluegrass Regional Mental Health/Mental Retardation Board, Inc. violated the Kentucky Open Records Act in denying the request of Amy Payne Korb to inspect "All Official Documentation in my personnel file from January 01, 2005 to September 22, 2006, to specifically include my official re-hire status with your agency, following my voluntary termination on July 17, 2005." Although Ms. Korb sent her request via certified mail on September 22, 2006 (following a series of unsuccessful attempts by telephone), as evidenced by the record, the Board had not responded as of October 16, 2006, at which point Ms. Korb initiated this appeal. Upon receiving notification of Ms. Korb's appeal from this office, Michael R. Moloney, Attorney At Law, responded on behalf of his client. Relying exclusively upon OAG 83-329, Mr. Moloney argues that personnel records fall within the parameters of KRS 61.878(1)(a) so the Board must deny access; this is "the policy" the Board has "always taken" with regard to personnel records. In reply, Ms. Korb notes the critical distinction between OAG 83-329 and the instant appeal--the requester in that case was the Equal Employment Opportunity Commission of Memphis, Tennessee (a third party), and the records at issue were personnel files of ten teachers employed by the Greenup Board of Education, whereas Ms. Korb is a (former) public employee requesting a copy of her own personnel records. Quoting the language of KRS 61.878(3), Ms. Korb contends that OAG 83-329 does not apply on the facts presented; we agree. To her knowledge, "and to date," the requested file is "not part of any [ongoing] criminal or administrative investigation by the agency, the requested record is not an examination, nor is the record made confidential by state or federal law." That being the case, Ms. Korb is correct in asserting that she is entitled to inspect the record(s) at issue; the Board's response was procedurally deficient and substantively incorrect.
As a public agency, the Board is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or her purpose in requesting access to the records generally speaking. More specifically, 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 Board 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 Board may not elect a course of inaction. Failing to respond in a timely and proper fashion as the Board initially did here, constitutes a clear violation of KRS 61.880(1). In short, compliance with these procedural guidelines is mandatory, and is a duty owed by a public agency just like the provision of other services to the public. Id. To avoid future violations, the Board should review this provision before responding to requests submitted pursuant to the Open Records Act. 1
Turning to the substantive issue presented, this office finds that Ms. Korb's position is validated by governing precedent. In our view, 97-ORD-87 and 05-ORD-118, copies of which are attached hereto and incorporated by reference, are controlling. As long recognized by the Attorney General, KRS 61.878(3), commonly referred to as the "exception to the exceptions" to the Act, vests public employees with a right to inspect records relating to them. 05-ORD-118, p. 6 (citation omitted). When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth at KRS 61.878(1) except KRS 61.878(1)(k) and (l), neither of which apply here. Id. An interpretation of KRS 61.878(3) which does not include former public employees such as Ms. Korb "'is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records Law.'" 97-ORD-87, p. 3, citing
Frankfort Publishing Company, Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992) (citation omitted). Because the requested documentation from Ms. Korb's file apparently does not include any "examination," nor does it relate to ongoing criminal or administrative investigations by the agency, the Board violated the Open Records Act in denying Ms. Korb's request. Upon receipt of this decision, the Board should make any existing records which are responsive to her request available to Ms. Korb for inspection as mandated by KRS 61.878(3).
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.
Amy Payne Korb111 Sutton Place Blvd.Georgetown, KY 40324
Stephanie DeanBluegrass Regional Mental Health/Mental Retardation Board, Inc.Division of Human Resources-Employee Records1350 Newtown PikeLexington, KY 40511
Joseph A. ToyPresident and CEOBluegrass Regional Mental Health/Mental Retardation Board, Inc.1350 Newtown PikeLexington, KY 40511
Michael R. Moloney Attorney At Law175 East Main Street, Ste. 300Lexington, KY 40507
Footnotes
Footnotes
1 Although the Board 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 Board should be guided be guided by these principles.