Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Elsmere violated the Open Records Act in the disposition of Sheila Carpenter's July 30, 2008, request to inspect "Officer Carpenter's" timesheets, payroll records, and shift activity logs for the period from August 1, 2006, through July 30, 2008, and "tickets, citations, or other sequentially numbered official documents" issued by Officer Carpenter during the same period. Based on the authorities cited, we find that the City's failure to fully disclose all existing responsive records to Ms. Carpenter in a timely fashion, and to advise her that it could not produce the requested "tickets, citations, or other sequentially numbered official documents" constituted a violation of the Open Records Act.
In its July 31 response to Ms. Carpenter's request, the City indicated that "the City Clerk's office will need to coordinate with the Police Department and our City Attorney to gather the information . . . requested," and stated that fulfillment of this request would require "at least 5-7 business days." Following several unsuccessful attempts to inspect the records, and the commencement of this appeal, Ms. Carpenter was at last afforded access to some of the records identified in her request on August 18, 2008. No explanation was offered for the City's inability to produce the remaining records at that time, or to date.
By letter dated August 21, 2008, Ms. Carpenter notified this office that her review of the records produced in response to her request disclosed a number of omissions, including work schedules and activity reports. Further, she noted, no citations or tickets were produced in response to her request. Upon inquiry, she was orally advised that these records "go to the state" and therefore might not be available. These omissions, and the inability to offer a reasonable explanation for them, constitute a violation of KRS 61.880(1) .
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.
In 08-ORD-189, this office analyzed the issues of timely access to nonexempt public records, suitable facilities for inspection of nonexempt records, and an agency's obligations relative to nonexistent records, in the context of a separate appeal involving the City of Elsmere. A copy of 08-ORD-189 is attached hereto and incorporated by reference. We direct the parties' attention to the analysis found at pages 8 through 10 of that decision.
Our review of the General Schedule for Local Government, established by the Archives and Records Commission under authority of KRS 171.420(3) and promulgated into regulation at 725 KAR 1:061, discloses that uniform citations must be maintained on agency premises for two years (Series L4679), activity logs for one year (Series L4658), and daily detail assignment sheets (work schedules) for 2 years (Series L4657). While some of the records identified in Ms. Carpenter's request might have been destroyed under proper records management practices prior to her request, the City does not assert this defense, electing instead to produce records that could be located and providing no explanation for those not located. Upon submission of her request, the City's authority to destroy records otherwise properly scheduled for destruction was suspended until the records access matter was fully and finally resolved in this forum and/or the courts. It is therefore incumbent on the City to continue its search for all remaining responsive records and produce those records for Ms. Carpenter's inspection, and to advise her, as well as the Department for Libraries and Archives, pursuant to KRS 171.720, which, if any, of those records cannot be located. Until it has done so, its duties under the Open Records Act will not be 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.