Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Transportation Cabinet violated the Kentucky Open Records Act in denying the request of Paul J. Vesper for "copies of all Coordinated Transportation Plans for the different regions in the state." In failing to issue a written response to Mr. Vesper's initial request within three business days, the Cabinet violated the mandatory terms of KRS 61.880(1); alternatively, the Cabinet has failed to provide a detailed explanation of the cause for delay and specify the earliest date certain on which the records will be available in accordance with KRS 61.872(5). Although the Cabinet further erred in failing to provide a brief explanation of how KRS 61.878(1)(i) applies on the facts presented, as expressly required by KRS 61.880(1), the Cabinet properly relied upon this exception insofar as the Coordinated Transportation Plan is properly characterized as a draft and therefore retains preliminary status until complete.
By letter directed to Vicki Bourne, Executive Director, Office of Transportation Delivery, on May 9, 2007, Mr. Vesper submitted the aforementioned request, explaining that Della Davis had referred him "to obtain the answers" to his question and instructed him "to make the request in writing." As observed by Mr. Vesper, he "attempted to participate in a Coordinated Transportation Planning program" and was informed this plan "was being done by various regions statewide to be filed with the Transportation [Cabinet]." In making his request, Mr. Vesper clarified that he is "not looking for applications for 5310 or 5311 money" but is "only looking for the Coordinated Plans as filed across the state." 1 Having received no response, Mr. Vesper submitted a "formal request for production of the Coordinated Transportation Plan for the different regions" of Kentucky as described in his previous letter. In a letter dated August 2, 2007, Mr. Vesper initiated this appeal because the Cabinet had not responded to either of his requests.
Upon receiving notification of Mr. Vesper's appeal from this office, J. Todd Shipp, Assistant General Counsel, responded on behalf of the Cabinet, attaching a copy of its response dated July 10, 2007, in which Ann Stansel, Record Custodian, advised Mr. Vesper that "the requested document is not complete at this time, and therefore cannot be provided pursuant to KRS 61.878(1)(i)." 2 Although the Cabinet was unable to specify an exact date, the Office of Transportation Delivery had advised Ms. Stansel that it anticipated completion "in approximately four weeks." As of August 13, 2007 (almost five weeks later), the date on which Mr. Shipp responded, he noted that Mr. Vesper had been advised "that the requested material was not yet complete and to ask for it again at a later date." In conclusion, Mr. Shipp observed merely that "nothing can be added to this response." Although the Cabinet violated KRS 61.880(1) in failing to issue a written response within three business days and has not, in the alternative, provided a detailed explanation of the cause for delay, as required to successfully invoke KRS 61.872(5) , nor has the Cabinet offered the requisite brief explanation of how KRS 61.878(1)(i) applies, governing precedents validate its reliance on that exception and the Cabinet has agreed to release the record upon its completion.
As a public agency, the Cabinet must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. 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.
(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-208.
By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies 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). As frequently noted by the Attorney General, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Here, the Cabinet apparently did not respond to Mr. Vesper's request dated May 9, 2007; the Cabinet offers no explanation for this inaction despite having two opportunities. In addition, the Cabinet did not respond to his "formal" request dated June 13, 2007, until July 10, 2007, far beyond the permissible time frame of three business days.
Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 3 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days under the following conditions:
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.
Unless the person to whom the request is directed does not have custody or 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. 02-ORD-165, p. 3, citing 93-ORD-134. If, on the other hand, any of those conditions exist, 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); 06-ORD-254; 02-ORD-165.
Said another way, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. 01-ORD-38, p. 5 (Emphasis added). 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. " Noticeably absent from the Cabinet's initial and supplemental responses are both of these mandatory elements. While extending the statutory deadline may have been warranted in this case and specifying an exact date may have been feasible, 4 the Cabinet's initial response was untimely and neither of the responses contains the specificity envisioned by KRS 61.880(1) and KRS 61.872(5).
On a related note, the requisite brief explanation of how the cited exception applies in this case is also lacking from both of the responses issued by the Cabinet. Public agencies must cite the applicable exception, and provide a brief explanation of how that exception applies to the records or portions thereof withheld per KRS 61.880(1) in order to satisfy the burden of proof imposed by KRS 61.880(2)(c) . 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. Similarly, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. In relying upon KRS 61.878(1)(i), the Cabinet merely referenced the provision, noting that "the requested document is not complete at this time," without further explanation. On appeal, the Cabinet does not elaborate. Bearing in mind that public agencies like the Cabinet have the burden of proof in denying requests under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that both responses provided by the Cabinet were deficient.
Edmondson v. Alig, supra at 858; See 97-ORD-170. In responding to future requests, the Cabinet should be guided by the longstanding principle that procedural requirements of the Act "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; 04-ORD-181; 04-ORD-080; 02-ORD-187. 5
Turning to the substantive issue presented, this office finds that governing precedents validate the Cabinet's denial. Among those records excluded from application of the Open Records Act are those identified at KRS 61.878(1)(i) as:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency [.]
As evidenced by prior decisions construing this exception, the Plan at issue is not a note or correspondence with private individuals; however, the Plan is, by definition, properly characterized as a draft or "a preliminary version of a plan, document, or picture." The American Heritage Dictionary 495 (4th ed. 2002). 07-ORD-136; 06-ORD-254.
In our view, the analysis contained in 05-ORD-048 is controlling with regard to application of KRS 61.878(1)(i); a copy of that decision is attached hereto and incorporated by reference. Because the Cabinet has expressly denied that a final version of the Coordinated Transportation Plan has been completed, and the limited evidence of record presents no reason to question the accuracy or truthfulness of that assertion, this office hereby affirms the Cabinet's denial on the basis of KRS 61.878(1)(i) . That being said, the Cabinet should make the Plan available to Mr. Vesper upon request once the final version is complete as previously agreed.
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.
Paul J. Vesper
Vickie BourneExecutive DirectorOffice of Transportation Delivery200 Mero Street, 3rd FloorFrankfort, KY 40622
Ann StanselOffice of Legal ServicesTransportation Cabinet200 Mero StreetFrankfort, KY 40622
J. Todd ShippAssistant General CounselOffice of Legal ServicesTransportation Cabinet200 Mero StreetFrankfort, KY 40622
Footnotes
Footnotes
1 Although Mr. Vesper asks for "Plans" (plural) initially, seemingly referring to individual plans from regions across the state, which are preliminary until adopted as the basis for the final action, his ultimate request is for "the Coordinated Transportation Plan" (singular), presumably referring to the final result. Both initially and on appeal, the Cabinet responded to Mr. Vesper's request based on the latter interpretation. In the absence of contrary evidence, this office proceeds on the assumption that only the final Coordinated Transportation Plan is at issue.
2 As consistently recognized by this office, resolution of such factual disputes concerning the actual delivery and receipt of a request (or a response) is beyond the scope of an Open Records appeal. See 07-ORD-046.
3 02-ORD-165, p. 3.
4 Although the Cabinet anticipated completion in approximately four weeks on July 10, 2007, the Plan remained incomplete as of August 31, 2007, when the undersigned counsel inquired regarding the status of same; however, the record is devoid of any context or explanation of the ongoing process by which to understand the reasons for the seemingly indefinite delay.
5 As a corollary proposition, the Cabinet should bear in mind that a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its 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 which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. See also 04-ORD-208.