Request By:
James T. Gilbert
Mark F. Bizzell
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Labor Cabinet violated the Kentucky Open Records Act in partially denying James T. Gilbert's "formal request for all documentation utilized in complying or otherwise underlying the report and conclusions of the compliance officer in the above-referenced matter [ Secretary of Labor Cabinet v. City of Berea , KOSHRC Docket No. 4611-08]" as well as a copy of "any audio recordings relating to any statements alleged to have been made by representatives of the City of Berea," and a copy of "Referral No. 202842274 referred to in the CSHO [Compliance Safety and Health Officer] report." In failing to either produce any nonexempt records which are responsive within three business days or cite the applicable statutory exception and briefly explain how it applies to any records being withheld, in accordance with KRS 61.880(1), or give a detailed explanation of the cause for delay and the specific date on which the nonexempt records would be available, in accordance with KRS 61.872(5), the Cabinet violated the Act from a procedural standpoint. On this issue, 07-ORD-023 is controlling. In accordance with prior decisions applying KRS 61.878(1)(i) and (j) in this context, along with KRS 338.101(1)(a), the Cabinet's ultimate disposition of the request is affirmed.
Upon receipt of Mr. Gilbert's written request dated September 17, 2008, but received on September 22, 2008, Paralegal Consultant April L. Abshire issued a timely but otherwise deficient response on behalf of the Cabinet, advising that the Cabinet was "reviewing the file" and would respond "as soon as we possibly can." By letter dated October 2, 2008, Mr. Gilbert initiated this appeal challenging the agency's failure to "comply with the statutory requirement to advise of its disposition of the request." 1 Upon receiving notification of Mr. Gilbert's appeal from this office, Mark F. Bizzell, Office of General Counsel, responded on behalf of the agency, noting that "a mere five (5) days after the Cabinet sent its initial response, and while attempting to fully comply with his request, on Thursday, October 2, 2008, Mr. Gilbert chose to file the current appeal" which the Cabinet received on October 6, 2008. According to Mr. Bizzell:
[T]he Cabinet did provide an accurate explanation for the delay [in] responding to the request. That is because, in order to fully comply with the open records request, it was necessary to contact and speak with the compliance officer to identify and verify the existence of the requested records, as the later two were not in the citation file. Compliance officers, however, are frequently out of the office conducting workplace safety inspections around the state, and that appears to be the case with the compliance officer in this case, thus necessitating the delayed response. Further, while this agency stated that it would respond "as soon as we possibly can," it must be pointed out that KRS 61.872(5) allows for a delay in responding for cause, and does not contain any maximum deadline in [sic] which to respond. And as the Cabinet filed a supplemental response on October 7, 2008, that fully addressed each of the requested records a mere eight (8) business days after its initial response, it cannot be said that the Cabinet did not act in good faith nor that Mr. Gilbert or his client suffered any prejudice.
In closing, Mr. Bizzell notes that the Cabinet sent a supplemental response to Mr. Gilbert on October 7, 2008, a copy of which is attached to his letter of October 8, 2008, and incorporated therein. A copy of the specified Referral was enclosed with said response, 2 in which Mr. Bizzell further notified Mr. Gilbert "after inquiry" that no recordings "were made and none exist." In addition, the Cabinet determined "that the work notes . . . requested consist of three (3) pages of hand-written [sic] notes" taken by the compliance officer "during employee interviews in the course of his inspection and investigation." Quoting extensively from 08-ORD-036, pp. 4-5, the Cabinet maintains that such notes are removed from application of the Open Records Act by KRS 61.878(1)(i) and (j), as well as KRS 338.101(1)(a), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). With the exception of a procedural violation, this office finds no error in the Cabinet's disposition of Mr. Gilbert's request.
As a public agency, the Cabinet is obligated to comply with 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently observed:
"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). Contrary to [the Department's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply . [Emphasis added.] In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act " normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request ." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request ." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain ." 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added).
Noticeably absent from the Cabinet's initial response are both of these mandatory elements. Although the Cabinet responded to Mr. Gilbert's request dated September 22, 2008, by letter dated September 25, 2008, (three business days later), which is a timely response, the Cabinet merely advised that it was "reviewing the file" and would respond "as soon as we possibly can" without further explanation. Mr. Bizzell is correct in asserting that the Cabinet cannot be said to have acted in bad faith on the facts presented; however, the Cabinet nevertheless violated KRS 61.872(5) in failing to provide a detailed explanation of the cause for delay and the "date certain" on which any nonexempt records would be available. On this issue, the analysis contained in 07-ORD-023 (pp. 3-5), a copy of which is attached hereto and incorporated by reference, is controlling. See 07-ORD-158 (Finance and Administration Cabinet's response that it was "in the process of filling" the request and expected to fill it "within the next two weeks" did not comply with KRS 61.872(5)); 01-ORD-38 ("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. "). See also 08-ORD-006. In light of this determination, the question becomes whether the Cabinet's response dated October 7, 2008, was substantively correct.
As long recognized by this office, a public agency is not required to honor a request for nonexistent records or those which the public agency does not possess. 04-ORD-036, p. 5. With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records, the analysis found at pp. 6-9 of 07-ORD-023 (attached) is controlling. Assuming the Cabinet made "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,'" the agency cannot be said to have violated the Act regardless of whether the search yielded any results. 07-ORD-023, p. 8 (citation omitted). See 05-ORD-108. Because the Cabinet is unable to produce for inspection or copying records which it does not have, and has affirmatively indicated to Mr. Gilbert in writing that no responsive audio recordings exist nor did the agency create any, nothing more is required. To hold otherwise would result in the Cabinet "essentially hav[ing] to prove a negative" in order to refute any claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the denial of Mr. Gilbert's request as to audio recordings in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-023, 07-ORD-188, and 07-ORD-190. That being said, the remaining question is whether the Cabinet properly relied upon KRS 61.878(1)(i), (j), and KRS 338.101(1)(a) in withholding some of the "documentation utilized in complying or otherwise underlying the report and conclusions of the compliance officer in the above-referenced matter," namely, the compliance officer's work notes.
With regard to application of KRS 61.878(1)(i) and (j) in this context, 05-ORD-168, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented; the analysis relative to KRS 338.101(1)(a) is equally controlling. Both work notes generated by an occupational safety and health compliance officer in the course of inspecting/investigating a work site, which contain preliminary handwritten drafts of possible citations, along with the observations and opinions of the compliance officer, and correspondence with private individuals which is not intended to give notice of final action, may properly be withheld in accordance with KRS 61.878(1)(i). Id., p. 3. In addition, work papers and interoffice memoranda containing opinions and recommendations relative to the investigation are exempt from public inspection pursuant to KRS 61.878(1)(j). Id.
Equally well-settled is the principle that employee interview statements acquired by a compliance officer pursuant to KRS 338.101(1)(a) that are included among those records in the investigative file are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). 3 Id. In OAG 84-345, this office construed the phrase "question privately," as used in KRS 338.101(1)(a), to render any statement so acquired confidential and therefore exempt from mandatory disclosure. Id., p. 4. Because the records in dispute fall squarely within the parameters of the referenced statutory exceptions, the Attorney General hereby affirms the denial of Mr. Gilbert's request as to any such records in accordance with prior decisions of this office, including 05-ORD-168.
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 Although Mr. Gilbert also challenges the timeliness of the Cabinet's response, this allegation is without merit since the agency has established on appeal that Mr. Gilbert's request was not received until September 22, 2008, and Ms. Abshire issued a written response on September 25, 2008, or within three business days per KRS 61.880(1); accordingly, further discussion is unwarranted.
2 Because the Cabinet has provided Mr. Gilbert with a copy of the specified Referral, any related issues are moot per 40 KAR 1:030, Section 6.
3 KRS 61.878(1)(l)authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."