Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville-Metro Housing Authority (Housing Authority) violated the Open Records Act in the disposition of Thomas E. Clay's March 1, 2007, request to inspect "all records pertaining to security contracts for the Housing Authority."
On March 1, 2007, Mr. Clay faxed the following request to the Housing Authority:
Pursuant to our telephone conversation this afternoon, you were made aware I will be at the Housing Authority at 9:00 a.m. on Friday, March 2, 2007, to inspect all records pertaining to the security contracts for the Housing Authority.
Responding by letter the same day, counsel for the Housing Authority advised Mr. Clay:
I am in receipt of your faxed letter of March 1, 2007.
Please be advised that KRS 61.872 states that the Custodian of Records may require written application signed by the applicant and with his name printed legibly on the application describing the records to be inspected. Louisville Metro Housing Authority will then have up to three (3) days to make the records available to you.
Louisville Metro Housing Authority does require such a written application. Your simply showing up on Housing Authority property at 9:00 a.m. on Friday, March 2, 2007, will not suffice. Please get the written application to us and we will follow the statute.
The record indicates that on March 1, 2007, Mr. Clay telephoned the Housing Authority and advised that he would appear at the office of Mr. Groves of the Housing Authority at 9 a.m. on March 2, 2007, to inspect the records. Mr. Nash, counsel for the Housing Authority contacted Mr. Clay by telephone on March 1, 2007, and advised him that he should make a written application to inspect the records, as required by KRS 61.872(2) and the records would be available for his inspection within three days of his written application. Mr. Clay then faxed a letter to Mr. Nash stating that he planned to show up at the Housing Authority a 9 a.m. on March 2, 2007, to inspect records. Mr. Nash then faxed a responsive record, dated March 1, 2007, advising that he should make a written application as required by KRS 61.872. Mr. Clay faxed another letter to Mr. Nash asking for an application form. Mr. Nash responded to Mr. Clay by fax advising that there was no particular form, but if he made an application which conformed with the requirements of KRS 61.872, he would be in compliance with the statute. Mr. Clay then faxed a third March 1, 2007, letter requesting that the Housing Authority' response denying his request to inspect the records include a statement of the specific exception authorizing the withholding of the records and a brief explanation how the exception applied to the records withheld. On March 2, 2007, Mr. Nash faxed a letter to Mr. Clay advising that the Housing Authority was not claiming any exception to disclosure and the requested records would be furnished within three days after a written application is submitted. On March 2, 2007, Mr. Clay submitted handwritten applications at Mr. Grove's Housing Authority office and at the Housing Authority's office at 420 South Eighth Street. By letter dated March 2, 2007, Mr. Nash advised Mr. Clay that the requested records would be available for his inspection at Housing Authority's Eighth Street office at 2:00 p.m. on Tuesday, March 6, 2007.
By letter dated March 2, 2007, Mr. Clay initiated the instant appeal asking this office to determine whether the actions of the Housing Authority violated the Open Records Act. For the reasons that follow, we find that the actions of the Housing Authority were substantially consistent with the requirements of the Act.
We find no error in the Housing Authority's insistence that Mr. Clay submit his open records request in writing. KRS 61.872(2) provides that the official custodian of records "may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. " In analyzing this language, the Attorney General has observed:
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing.
94-ORD-101, p. 3; see also, OAG 76-588, p. 2 ("Public agencies may put into their regulations the requirement for written application . . ."). Adherence to this requirement behooves both the requester and the public agency. "Without a written record documenting these exchanges, this office is severely handicapped in its disposition of an open records appeal." 96-ORD-46, p. 3. Discrepancies and misunderstandings inherent to oral open records transactions are quickly resolved by an incontestable written record. We affirm the Housing Authority's decision to require Mr. Clay to submit his request in writing.
Moreover, KRS 61.880(1) establishes a three business day deadline for agency response to an open records request, and production of the requested records on the same day, by providing:
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.
In construing this provision, the Attorney General has remarked:
"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 agency response time codified at KRS 61.880(1).
02-ORD-61, p. 5. The Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. Accordingly, we find no error by the Housing Authority in making the records available for inspection on March 6, 2007, three business days after receipt of the March 2, 2007, request.
However, Mr. Clay complains that the Housing Authority improperly set a date and time when the records would be available for inspection, arguing that it was in conflict with KRS 61.872(3)(a) which provides: "a person may inspect the public records during the regular hours of the public agency. "
Responding to this issue on behalf of the Housing Authority, Mr. Nash advised that the designation of a time was designed for reasonable persons to know when records would be available for inspection, and that the records would, in fact, be available for inspection. He further advised that if Mr. Clay had a problem with the date and time, all he had to do was pick up the phone and ask for a different date and time.
KRS 61.872(3)(a) mandates public access to agency records "during the regular office hours of the public agency. " In construing this provision, this office 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; In 98-ORD-69, we expressly held that an agency:
cannot restrict the hours of access to public records in the course of the business day, cannot condition exercise of the right to inspect those records on the availability of an employee or employees to oversee inspection, and cannot avoid [its] statutory duty based on the requester's identity or purpose, or the need "to minimize the commitment of time and burden on the public 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.
Mr. Clay was entitled to immediately inspect the requested records during the Housing Authority's regular office hours once the agency notified him in writing that the records were available for review. In the interest of absolute clarity, we reiterate that he cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, 1 but may make such an appointment as a reasonable accommodation to the Housing Authority.
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.
Thomas E. Clay, P.S.C.
Richard Nash, Jr., P.S.C.
Footnotes
Footnotes
1 No claim is made that the Housing Authority has only one or two employees or that it operates during restricted or irregular hours.
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