Request By:
Nikki Townsend
Anne E. Burnham
Becky Conner
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 Cabinet for Health and Family Services violated the Open Records Act in the disposition of Nikki Townsend's November 30, 2008, request to inspect "all email, memorand[a], memos, photographs, correspondence, database holdings, and/or any other electronic or hard copy document or record regarding [her] work performance, medical issues, disability, or any other issue not yet mentioned [that] refers to Nikki Townsend" for the period from October 1, 2005, to December 1, 2008. For the reasons that follow, we find that the Cabinet's response was procedurally and substantively deficient.
In her letter of appeal, Ms. Townsend explained that as of December 8, 2008, she had received no response to her request. In correspondence directed to this office, the Cabinet responded to Ms. Townsend's appeal on December 19, 2008, explaining that on December 5 Ms. Townsend was notified by Amber Arnett that her request had been received. Ms. Arnett's response, a copy of which was supposed to have been "Attached as 'Exhibit 1'" to the Cabinet's response but did not reach this office, apparently read as follows:
The records you seek are in active use, in storage, or otherwise unavailable at this time. We anticipate that the responsive records that are not otherwise exempt from disclosure will be available for you on or before January 5, 2009. If the records are available before that time, we will promptly notify you.
It was the Cabinet's position that it complied with the Act and that Ms. Townsend's appeal was mooted by this response per 40 KAR 1:030 Section 6. 1 In defense of its response, the Cabinet explained:
The reasons for the delay in providing the records for inspection relate to the nature of her broad request for records from numerous individuals in various offices across the state but within the Cabinet. Furthermore, the delay in providing an initial response within the three day time frame relates to the fact that Ms. Townsend submitted the requests to the wrong Cabinet department and the requests were delayed en route to the correct office for a response.
Respectfully, we do not agree that "the Cabinet . . . complied with the Open Records Act and [that] this appeal should be denied as it is moot at this point in time . . . ."
This office subsequently received copies of, but declined comment on, emails exchanged by the Cabinet and Ms. Townsend relative to her request. In response to Ms. Townsend's inquiry concerning, among other things, where to go to view and copy the requested "responsive records that are not otherwise exempt from disclosure, " the Cabinet advised Ms. Townsend:
Payment is due when the copies are made or, in advance, if the records are mailed. To correct [an] earlier email [in which the Cabinet indicated that records from Frankfort had been mailed] , [the Cabinet] did not send any records yesterday, as you have not yet paid for the copies. Upon receipt of the fee, the copies will be mailed to you with a letter detailing any records that have been withheld and/or redacted and the basis for such.
This, along with the Cabinet's initial response to Ms. Townsend's request, reflect a misunderstanding of its obligations under the Open Records Act. 2
While we are not equipped to resolve the factual dispute relating to the actual delivery and receipt of the Cabinet's response to Ms. Townsend's request, 3 it is apparent that the response was deficient. KRS 61.880(1) contemplates records access within three business days of receipt of the records request. The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
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.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.8782(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6. The Cabinet's response to Ms. Townsend's request did not contain a detailed explanation of the cause for delay beyond the three day statutory deadline. Instead, it parroted, without citing, the language of the statute upon which it relied in extending the deadline for release of the requested records. The explanation appearing in its supplemental response to Ms. Townsend's request, attributing the delay to the breadth of her request, was only minimally "detailed." Although an extension of the statutory three day deadline for release of the requested records may have been warranted in this instance, the Cabinet's disposition of Ms. Townsend's request "fell far short of the procedural mark." 09-ORD-002, p. 5.
While we find no error in the Cabinet's policy of requiring prepayment in the amount of ten cents per page, plus postage, for copies of records mailed pursuant to KRS 61.872(3)(b), 4 we find no support in the law for its policy of notifying requesters, after onsite inspection has been conducted or reproduction and postage fees have been paid, what records were withheld and the statutory basis for doing so. KRS 61.880(1) clearly state that "[a]n 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. " This provision contemplates written notification of the records, or parts of records, withheld on the third day after receipt of the request, or, pursuant to KRS 61.872(5), no later than the "earliest date on which the public record will be available for inspection. " The Cabinet erred in failing to advise Ms. Townsend, in its January 5 letter notifying her that the records were available for inspection or mailing, what records it intended to withhold and the statutory basis for doing so. Its postponement of this statutory duty constituted a violation of the Open Records Act, and, in particular, KRS 61.880(1).
While we are hopeful that the remaining records access issues were resolved upon inspection, or receipt by mail, of the requested records, the Cabinet should bear these observations in mind in responding to future open records requests. The Cabinet should also bear in mind that unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot. See 40 KAR 1:020 Section 6.
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 40 KAR 1:030 Section 6 provides:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
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2 We do not address the non-open records related questions, such as whether the attorney assigned to her personnel action should be involved in "handling the actual response to [her] open records request," which Ms. Townsend raises. This and other questions relating to her personnel action are not justiciable in this forum.
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3 See, e.g., 02-ORD-226.
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4 KRS 61.872(3)(b) provides that a person may inspect public records:
By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
We note, however, that Ms. Townsend originally asked to inspect the records identified in her request.
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