Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the City of Cumberland violated the Open Records Act in the disposition of Charles Raleigh's request for certain City records.
By letter dated October 7, 2008, Mr. Raleigh submitted an open records request to the City requesting the following records:
1. ? a copy of delinquent water bills, as well as the names and the account numbers of the people who owe them. I would also like a total dollar amount owed to the city from all delinquent water bills.
2. A list of all employees & their hourly rate of pay.
3. A copy of the totals spent on each individual gas card as well as whom they are issued to for the months of July & August 2008.
4. A copy of the completed audit report, if completed.
5. Copies of the last 3 months of receipts & credits from C. I. Thornburg & McCoy & McCoy.
6. A copy of the receipt for the blacktop from mountain enterprise. The same receipts that were recently sent to the county that they refuse to pay.
By letter dated October 10, 2008, Loretta Cornett, Mayor, responded to Mr. Raleigh's request advising him that the City had been very busy that week and would get back with him on the request. Not satisfied by the City's response, on October 10, 2008, Mr. Raleigh initiated the instant appeal.
After receipt of notice of the appeal, S. Parker Boggs, City Attorney, by letter dated October 20, 2008, provided this office with a response to the issues raised in the appeal. In his response, Mr. Boggs advised this office that Mr. Raleigh's request had been honored and attached a letter from the city clerk showing that Mr. Raleigh received and paid for 64 photocopies of the requested records on October 14, 2008. She acknowledged that the City did not provide Mr. Raleigh with a requested audit, because it had not yet been completed, but that upon completion it would be provided to him. In a reply to this office, Mr. Raleigh asserts that he did not get all the records that he requested and that he got copies of some records he did not request.
KRS 61.880 sets forth the procedural guidelines for an agency response to an open records request. 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 business days of the receipt of the request, and indicate whether the request will be granted.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond within 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 are 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).
In her initial response to Mr. Raleigh's request, the mayor advised him: "We have been very busy this week and we will get back with you." Such an explanation cannot properly be characterized as "detailed." Moreover, this office has previously held that the press of business or the absence of the official custodian does not justify an untimely delay in providing public records. 96-ORD-238. Accord, 04-ORD-044 (holding that delay until the agency "could do some research on the matter," was insufficient to be characterized as a "detailed explanation" of the cause for the delay). KRS 61.872(5) . Because the City's initial response failed to provide Mr. Raleigh with a detailed response as to the "time, place and earliest date on which" the requested records would be available for inspection after the research was completed, it constituted a procedural violation of the Act.
Addressing the substantive issue, the City contends that it has provided 64 copies of records responsive to Mr. Raleigh's request, with exception of the requested audit, because it is not yet completed. Mr. Raleigh acknowledged receipt of records from the City, but asserts many were not relevant to his request and that he has not received other records and information that he had requested.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
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.
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. As noted above, the City, in its response to this office, advised that Mr. Raleigh would be provided with a copy of the requested audit, once it is completed.
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.