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 the Pike County Detention Center violated the Open Records Act in its disposition of Amy Mischler's April 4, 2007, request for "all records and including emails, paper documents and online documentation concerning me, Amy Mischler that are located at the Pike County Detention Center. I am especially interested in the documents concerning my transfer."
In her letter of appeal, dated April 20, 2007, Ms. Mischler stated that as of that date, she had received no response to her request. By letter dated April 26, 2007, Ms. Mischler advised this office that she had received a response from the Detention Center and she had been provided with 17 pages of records. However, she believed there were missing documents, such as the record having the name and signature of the trooper who transported her.
After receipt of the notification of the appeal, Rodney Scott, Pike County Jailer, provided this office with a response to the issues raised in the appeal. In his response, Mr. Scott advised that all records requested by Ms. Mischler were mailed to her on April 19, 2007.
We address first the procedural issue as to the timeliness of the Detention Center's response. KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must "include a statement of the specific exception authorizing the withholding of the record," and briefly explain how the exception applies to the record withheld.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the 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 notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "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. " KRS 61.872(5). Ms. Mischler, in her letter of appeal, indicated she placed her request to the Detention Center in the mail on April 4, 2007. The Detention Center advised this office that it provided a response to the request and copies of the requested records on April 19, 2007. Although the exact date of receipt of the request is not known, to the extent the response was mailed over three business days after receipt of the request, its response was untimely and constituted a violation of KRS 61.880(1).
We next address the substantive issue. Ms. Mischler asserts all records responsive to her request had not been provided. The Detention Center's response to this office advised that it had provided all records responsive to her request. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3.
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
A party aggrieved by this decision may appeal it by initiating an 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 Mischler
Rodney A. ScottPike County Jailer103 Hall of Justice172 Division StreetPikeville, KY 41501
Howard Keith HallPike County AttorneyP.O. Box 1289Pikeville, KY 41502-0289