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 City of Jeffersontown violated the Open Records Act in the disposition of Bradley T. Silveria's October 30, 2006, request for fifteen categories of records relating to the Jeffersontown Police Department. For the reasons that follow, we find that the City violated KRS 61.880(1) in failing to afford Mr. Silveria timely access to records it agreed to disclose, and in improperly denying certain of his requests or failing to provide sufficiently particularized information to satisfy its statutorily assigned burden of proof 1 relative to the denial of other requests.
In his October 30 records request, Mr. Silveria identified fifteen categories of records he wished to inspect and/or copy. In the interest of brevity, we omit the records' description except to note that the records could generally be described as financial and operational records of the Department. By letter dated November 3, 2006, the City responded to Mr. Silveria's request by agreeing to make "available now" the records identified in requests 1, 2, 3, 4, 5, 11, and 12, and to make available "within ten (10) business days" the records identified in requests 7, 8, and 9. The City denied access to the records identified in requests 6, 10, 13, 14, and 15. Those requests, and the bases for denial advanced by the City, are set forth below:
6. Any and all correspondence between City Hall (including but not limited to the Mayor, City Attorney, City Council, Office Staff, etc.) and the Police Department relating to the Police Department budgets: working papers that were destroyed after completion of annual city budget and audited financial statements are reflected in the audit: KRS 61.878(1)(i).
10. Any and all documentation or correspondence between the Mayor, City Attorney and/or the Chief of Police or Lt. Colonel Emington regarding the disciplinary action initiated by Lt. Colonel Emington against Diedra Adkins regarding Deidra's medication and the department's right to know about the same: KRS 61.878(1) (a) (i) (j) (k).
13. Any and all documentation by and between the Chief of Police, Lt. Colonel Emington, the City Attorney, and/or Mayor Foreman regarding a meeting recently with seven Sergeants and two Corporals along with Major DeBell, in which the topic was the commanding officers request to the Chief of Police that Lt. Colonel Emington be removed from her position and demoted: KRS 61.878(1) (a) (i) (j) (k) without conceding the conclusions offered in the request.
14. Any and all e-mail correspondence from the Police Department's e-mail server from or to Lt. Colonel Emington regarding Diedra Adkins, Bradley Silveria, James Hensley, and/or Melvin Kindle, and/or relating to the current complaint by the same against Lt. Colonel Emington: KRS 61.878(1) (a) (i) (j) (k).
15. Police "Incident Report" regarding Rural Metro ambulance by Officer Melvin Kindle at Plainview Apartments, in which a person died, along with any and all radio and telephonic transmissions, run cards, investigative notes, follow-up investigation, etc. -- Exempt due to non-specific nature of your request. Such requests must refer to specific details with reference to date, time of day, locations and identified parties: KRS 61.871(2); KRS 61.872(6).
On or about November 15, 2006, Mr. Silveria initiated this open records appeal.
On appeal, Mr. Silveria questioned the City's failure to produce the written correspondence he requested, and the imposition of a prepayment requirement for copies of records which were not produced or made available to him. In supplemental correspondence directed to this office following commencement of Mr. Silveria's appeal, the City amplified on its position. On behalf of the City, attorney Fred E. Fischer explained, with reference to Mr. Silveria's request for correspondence relating to the Department's budget:
These items were exempted pursuant to KRS 61.878(1)(i) . After completion of the annual City budget and the audited financial statements which are reflected in the City's audit, preliminary drafts, notes, correspondence with private individuals, other correspondence which is intended to give notice of final action of the City are merged into and reflected in the City's audit.
Copies of the City's audit were provided to the requesting party. KRS 61.878(1)(j) is also applicable to this exemption as reflected in OAG 89-24; OAG 88-24; OAG 88-9; and, OAG 86-32.
With reference to Mr. Silveria's request for correspondence concerning disciplinary action against Diedra Adkins, Mr. Fischer advised:
This information was exempted by the City pursuant to KRS 61.878(1)(a) in that the information contained therein is of a personal nature, where public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, and sub. Sec. (i) (j) (k), in that no final action has been taken on this matter and any correspondence is of a preliminary nature, and/or privileged: OAG 88-49; OAG 88-32; and OAG 85-20.
With reference to Mr. Silveria's request for documentation of the meeting at which the Chief of Police was asked to remove Lt. Colonel Emington, Mr. Fischer stated:
These records, (without conceding the conclusions offered in the request), were exempted pursuant to KRS 61.878(1)(a)(i)(j)(k). See OAG citations set forth in number ten (10) above.
With reference to Mr. Silveria's request for email located on the Department's server from or to Lt. Colonel Emington "regarding Diedra Adkins, Bradley Silveria, James Hensley, and/or Melvin Kindle," and their complaint against Lt. Colonel Emington, Mr. Fischer again tersely responded:
These records were cited as exempt pursuant to KRS 61.878(1) (a) (i) (j) (k). The OAG opinions set forth in number ten (10) above relate to these exemptions.
Finally, and with reference to Mr. Silveria's request for the incident report, radio and telephonic transmissions, run cards, investigative notes, and follow up investigations relating to a Rural Metro ambulance, Officer Melvin Kindle, and the death of a person at Plainview Apartments, Mr. Fischer observed:
These documents were exempted due to the non-specific nature of the request; such request did not refer to specific details with reference to date, time of day, locations and identified parties: the City relied upon KRS 61.872(2); KRS 61.872(6).
On these bases, the City urged this office to issue a decision holding that the City did not violate the Act.
By letter dated November 27, 2006, Mr. Silveria questioned the City's supplemental response, noting that the first group of records disclosed to him did not contain the records identified in requests 1, 2, 3, and 5, as promised. He again questioned the City's disposition of his request, and, in particular, the timing of the production of the records, asserting that:
The city clerk required three days to pick up the first round of open records. When he contacted me, [the clerk] advised that we would have to pay first for the records we requested; and then made us wait an additional three days or greater period before allowing us to pick up the said record. It is our belief that this policy of Jeffersontown is in direct violation of the KRS . . . . As of November 27, 2006 at 3:08 PM, we are still waiting for the records that [the clerk] stated would be ready on the 20th of November 06.
Mr. Silveria characterized the City's actions as a subversion of the intent of the Act, within the meaning of KRS 61.880(4), 2 and expressed the belief that these actions are intended to conceal its wrongdoing. 3 In particular, he questioned the City's failure to produce time cards for the ten year period requested, and the adequacy of the City's position that those records have only a three year retention period. We concur with him in his view that the City's conduct is partially violative of the letter of the law and subversive of the intent of the law, but we make no finding on his other allegations.
Procedural violations and timely access
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request and produce the requested records or formally deny the request. These requirements, the Attorney General has often noted, "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. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of other services to the public.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in 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). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to provide the requester with timely access to the requested records.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. We reach the same conclusion in the appeal before us.
At page 11 and 12 of 93-ORD-134, the Attorney General reasoned:
"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:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . It is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
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.
Consistent with the principle that "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), we find that the City's failure to produce all nonexempt public records for a period of nearly one month, if not longer, 4 is unreasonable notwithstanding "the breadth of the request and the number of documents it encompasses . . . ."
As noted, the only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute 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.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6. Elaborating on this view, in 01-ORD-38 the Attorney General declared that "KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. " The City's response to Mr. Silveria's request was deficient insofar as it did not contain a detailed explanation of the cause for delay. Although it stated a date certain on which the records would be available, to wit November 17, the City did not fulfill its obligation to Mr. Silveria, and the law, by producing the records on that date, and had not done so as of his November 27 letter to this office.
We find no error in the City's imposition of a prepayment requirement for copies of records. 5 Both KRS 62.872(3)(b) and KRS 61.874(1) authorize this practice. Our review of the record on appeal suggests, however, that the City may have improperly applied these provisions by requiring prepayment on the third day and postponing production of the records an additional three days. If this is the case, the City's actions constituted a violation of the Open Records Act.
Substantive violations and the propriety of the City's denials of Mr. Silveria's requests
Turning to the substantive issues on appeal, we analyze below each of the requests the City expressly denied. In so doing, we remind the City that its statutory duties under the Open Records Act are not fully discharged until it discloses to Mr. Silveria all nonexempt records that it previously agreed to disclose, including those items identified in requests 1, 2, 3, and 5. If it has not already done so, the City must locate these records and make them available to Mr. Silveria. The City is not, however, required to produce time cards for a period greater than three years, assuming those time cards no longer exist, 6 inasmuch as the proper retention period for time and attendance records, including time cards, is, in fact, three years. See, Local Government General Records Retention Schedule, Series L5022 (enclosed).
Request 6: Documentation relating to Police Department budgets
The City's original and supplemental responses to this request are inconsistent. In the original response, the city clerk advises that "working papers . . . were destroyed after completion of [the] annual city budget and audited financial statements are reflected in the audit. " In Mr. Fischer's supplemental response, he invokes KRS 61.878(1)(i) and (j), suggesting that the work papers "are merged into and reflected in the City's audit. " If those work papers were not destroyed, they arguably forfeited their preliminary character to the extent they were "merged into and reflected in the City's audit. " See, e.g.,
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983) ("documents defined in Subsections [(i) and (j)] which became a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records" ;
University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373 (1992) ("materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). Given the assigned retention period for budget work papers, found at Record Series L5006 of the General Schedule, and providing for destruction "at the end of the current fiscal year and audit, " we believe it is more likely that the work papers from past fiscal years were properly destroyed and cannot be produced because they no longer exist. Any work papers that still exist, such as the current fiscal year's, must be disclosed to Mr. Silveria to the extent that they were, in fact, "merged into and reflected in the City's audit, " and thereby forfeited their preliminary characterization.
Request 10: Documentation concerning disciplinary action against Diedra Adkins
The City denied this request on the basis of KRS 61.878(1)(a), (i), (j), and (k), 7 asserting that the information contained therein was of a personal nature and that public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. More importantly, the City advised that "no final action has been taken on this matter," and that therefore the requested records were preliminary in nature. We affirm the City's denial of this portion of Mr. Silveria's request on the basis of KRS 61.878(1)(i) and (j) as construed in
City of Louisville v. Courier-Journal, Ky. App., 637 S.W.2d 658 (1982), Kentucky Board of Medical Licensure, above, University of Kentucky, above; and
Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001). Until final action is taken in this disciplinary matter, or a decision is made to take no action, records generated in the course of the action retain their preliminary characterization. 8
Request 13: Documentation of meeting at which the Chief of Police was asked to remove Lt. Colonel Emington
The City again relied on KRS 61.878(1)(a), (i), (j), and (k) in denying this request, and our analysis of the propriety of its argument is largely the same. Assuming a request was, in fact, made for her removal, and assuming no decision on that request has yet been made, we find that the City may properly withhold documentation of the meeting. We note, however, that the City's response, both original and supplemental, were deficient insofar as they failed to indicate what, if any, records exist that are responsive to the request. For example, were notes generated in the course of the meeting; was an audio or videotape made of the meeting; did any of the meeting participants submit written documentation concerning the issue of Lt. Colonel Emington's removal? We are foreclosed from adequately assessing the propriety of the City's denial by virtue of the paucity of information provided.
Request 14: Email located on the Department's server from or to Lt. Colonel Emington "regarding Diedra Adkins, Bradley Silveria, James Hensley, and/or Melvin Kindle," including email relating to their complaint against Lt. Colonel Emington
The City again denied this request on the basis of KRS 61.878(1)(a), (i), (j), and (k) and again incorporated its response to request 10 for the proposition that disclosure of the records would constitute a clearly unwarranted invasion of personal privacy and is otherwise prohibited because no final action has been taken. Given the scope of this request, we find the City's responses, both original and supplemental, deficient. In construing the agency's obligations under KRS 61.880(1) in responding to an open records request, the Kentucky Court of Appeals has opined:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for document.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). A "limited and perfunctory response," the court observed, does not "even remotely compl[y] with the requirements of the Act -- much less . . . amount[] to substantial compliance." Id. Although this criticism could have been leveled against any of the City's responses to Mr. Silveria's requests, the deficiency of its response to request 14 is especially egregious.
We know, from having reviewed the record on appeal, that Ms. Adkins is the subject of an ongoing disciplinary action and that a request may have been made to the Department to remove Lt. Colonel Emington from her position. The record on appeal does not reflect that any actions are pending against Mr. Silveria, Mr. Hensley, or Mr. Kindle. The record is devoid of proof that the City undertook a search of any kind for records responsive to this request, or that it formulated its response to this request only after reviewing the responsive records thus located.
We find that Mr. Silveria is clearly entitled to any and all records responsive to request 14 that relate to him by operation of KRS 61.878(3). 9 That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee. The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
In contrast, this office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We reaffirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related. We believe 93-ORD-19 and 93-ORD-24 are dispositive of this appeal.
KRS 61.878(3) limits public employee access to records relating to the employee only if the investigation is initiated "by an agency." If it were the legislature's intent that the prohibition extend to investigations initiated "against" an agency, it could have so provided by inclusion of the words "by or against." We attach significance to the legislature's particular word choice, and conclude that the limiting language of KRS 61.878(3) prohibits public employee access to their own records only when the criminal or administrative investigation is undertaken by (as opposed to against) the agency. Compare KRS 61.878(1)(h) (authorizing nondisclosure of "[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.")
Unless Mr. Silveria is the subject of an undisclosed investigation that is ongoing, he is entitled to inspect and obtain copies of the emails concerning his complaint insofar as they relate to him, as well as any other emails on the Department's server from or to Lt. Colonel Emington so long as they relate to him. Given the paucity of information provided by the City, it is unclear whether any other responsive emails relating to Ms. Adkins, Mr. Hensley, or Mr. Kindle exist. It is incumbent on the City to search the Department's server for responsive emails and produce them for inspection, or, alternatively, describe them in general terms and cite the exception authorizing nondisclosure, explaining the exceptions' application to the records withheld. Until it has done so, the City's duties under the Open Records Act are not fully discharged.
Request 15: Incident report, radio and telephone transmissions, run cards, investigative notes, and follow-up investigation relating to a Rural Metro ambulance, Officer Melvin Kindle, and the death of a person at the Plainview Apartments
The City denied this request on the basis of KRS 61.872(2) and KRS 61.872(6), arguing that it was insufficiently specific as to "date, time of day, location, and identified parties." Because the Department fails to demonstrate that it "can[not] identify what documents the applicant[] wish[es] to see," or to "forecast what [its] actual burden will be" in fulfilling Mr. Silveria's request, Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005), 10 we disagree.
In his original request, Mr. Silveria did not express a preference as to the mode of access of the records identified in that request. This office has long recognized:
The Open Records Act . . . contemplates records access by one of two means: onsite inspection during the regular office hours of the agency in suitable facilities provided by the agency, or receipt of records from the agency through the mail.
97-ORD-46, p. 3, construing KRS 61.872(3)(a) and (b). KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by onsite inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail. If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8; 93-ORD-116; 94-ORD-12. The referenced decisions echoed the position which was first articulated by the Attorney General in OAG 76-375, and are premised on the notion that:
[Public] agencies and employees are the servants of the people, as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time. It is . . . incumbent on a requester, in framing his request, to describe the records he seeks to inspect with reasonable particularity. If he does not, the agency is not obligated to conduct a search for the records.
95-ORD-108, p. 2, 3. Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate "descri[ption]" for purposes of onsite inspection pursuant to KRS 61.872(2). We have also had occasion to articulate a standard for determining if a requester has described the records he wishes to access by mail with "precis[ion]".
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). This office has held that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail. 97-ORD-46, p. 3, 4. Because Mr. Silveria did not specify a preferred mode of access, we assess the degree of specificity necessary under the KRS 61.872(2) standard, requiring a description that enables the agency's custodian to "identify what documents the applicant[] wish[es] to see . . . ." Chestnut at 4.
We find that Mr. Silveria's request satisfies this standard. The request identified a particular incident involving the death of an individual at a particular location, and involving a particular employee of the Department and a particular type of ambulance. It is safe to assume that individuals do not regularly die at the Plainview Apartments in incidents in which Officer Melvin Kindle and a Rural Metro ambulance are involved. Surely, the information Mr. Silveria provided was sufficiently specific to enable the Department's official custodian to "identify what documents [he] wished to see." Chestnut, at p. 4. The Department cannot evade its duty "to conduct a search using methods which could reasonably be expected to produce the records," 04-ORD-028, p. 10, citing 95-ORD-96, p. 7, 8, through its claim of an improperly framed and nonspecific request, but must expend reasonable efforts to identify, locate, redact, and make available for inspection all existing nonexempt records that are responsive to Mr. Silveria's request. As noted above, until it has done so, its duties under the Open Records Act are not fully discharged.
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.
Footnotes
Footnotes
1 In the context of an open records appeal to the Attorney General, KRS 61.880(2)(c) states," The burden of proof in sustaining the action shall rest with the agency . . . ." See also KRS 61.882(3) ("In an original action or an appeal of an Attorney General's decision [in the circuit court], where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency. ")
2 KRS 61.880(4) thus provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
3 In addition to these claims, Mr. Silveria notes that he and other coworkers have filed a complaint against the City, seeking whistleblower status, and expresses the belief that the City has retaliated against them. We are foreclosed from addressing these claims, or otherwise conducting an "investigation" into them, by virtue of the fact that KRS 61.880(2)(a) restricts our authority in an open records appeal to issuing "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."
4 It is unclear whether all nonexempt records have now been disclosed to Mr. Silveria.
5 Mr. Silveria was, of course, entitled to conduct an onsite inspection of the records and incur no copying costs unless he elected to obtain copies of those records. KRS 61.872(3)(a)
6 If the City failed to implement an adequate records management program, and the time cards were not destroyed in the normal course of business and consistent with the applicable retention period and therefore still exist, those time cards must be produced.
7 The City invokes KRS 61.878(1)(k), authorizing public agencies to withhold "records the disclosure of which is prohibited by federal law or regulation" without citing the corresponding federal citation.
8 Although Ms. Adkins enjoys a broader right of access to records that relate to her, pursuant to KRS 61.878(3), and this includes "preliminary and other supporting documentation, " she is precluded from inspecting these records while she is the subject of an ongoing investigation by the agency by virtue of the same provision
9 Mr. Hensley and Mr. Kindle are vested with the same absolute right of access by operation of KRS 61.878(3) if they submit an open records request for records relating to each of them in their own names.
10 Although Department of Corrections v. Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing the degree of specificity required in an open records request. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-0000-86).