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 Cumberland violated the Open Records Act in the disposition of Tri-City News reporter Faith Clark's December 11, 2009, request for various financial and operational records maintained by the City. For the reasons that follow, we find that the City violated the Act in the disposition of Ms. Clark's request.
In her December 23, 2008, letter of appeal, Ms. Clark explained that she hand-delivered her request on December 11. Having received no response, Ms. Clark indicated that she contacted the City on December 19, was advised that the City Clerk was "not in at that time," and left a message for the Clerk informing her that Tri-City News' fax machine was not operational. For this reason, she asked that the City "call, email, or stop by [her] office to contact [her]." Having heard nothing further, she initiated this appeal on December 23.
By letter dated January 7, 2009, and addressed to the undersigned, the City of Cumberland responded to Ms. Clark's complaint, asserting that the City Clerk "called Ms. Clark at her office at the Tri-City News on December 16, 2008, but Ms. Clark was out of the office." The City acknowledged that Ms. Clark contacted the Clerk's office on December 19, that the City advised her that the City Clerk "was on vacation and would be back on . . . December 22, 2008," but that Ms. Clark did not thereafter contact the Clerk. In defense of its inaction, the City explained that its policies precluded e-mailing or faxing copies before payment for same was received. The City extended an offer to Ms. Clark to come to its offices to pick up the records during regular business hours, and denied that it refused to honor her request.
In supplemental correspondence directed to this office, Ms. Clark questioned the City's assertion that the City Clerk attempted to contact her on December 16, noting that none of her co-workers was aware of the call. She acknowledged her obligation to pay for copies, but indicated that she had not been advised of the cost. Alternatively, she acknowledged that she could be required to conduct an onsite inspection as a precondition to obtaining copies, but suggested that the City provide her with a date, time, and place certain for inspection, within the statutory construct, to avoid unnecessary delays. Nevertheless, she questioned the City's good faith in extending an offer to make all requested records available for inspection, noting that in a conversation with the City's Mayor, conducted on January 5, the Mayor stated that the audit to which Ms. Clark had requested access contained information that could not be released.
Given this conflicting evidentiary record, we cannot conclusively resolve all of the issues Ms. Clark raises. It is, however, clear, that the City violated KRS 61.880(1) in failing to respond, in writing, to the hand-delivered request. That statute 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.
The record is devoid of any evidence that the City responded to Ms. Clark's request in writing as expressly required by KRS 61.880(1). It is precisely because disputes arise concerning telephone communications that the Open Records Act requires a written response. As of this date, Ms. Clark has not been notified in writing, that she may inspect the records, when and where she can inspect the records, how much she will be charged for copies of the records, and, if any of the records are to be withheld, the statutory basis for doing so. 1 Accordingly, we find that the City violated KRS 61.880(1) in the disposition of Ms. Clark's request.
Further, we note that the absence of the City's records custodian did not toll its response time. The parties agree that Ms. Clark called the City Clerk on December 19 and was advised that the clerk "was not in the office." The City maintains that she was further advised that the City Clerk would return on December 22. Nothing in the Open Records Act permits an agency to postpone release of public records because its records custodian is unavailable. On this issue, the Attorney General has opined:
The Open Records Act assumes the appointment of an official custodian, defined as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control," KRS 61.870(5), who is responsible for the timely processing of open records requests. KRS 61.872; KRS 61.880(1). The Attorney General has recognized that in the event the official custodian is absent, "an individual should be appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; see also 96-ORD-185, p. 3 (holding that "the Law presumes the appointment of a records custodian . . . and in his absence, the appointment of an alternate to fulfill his duties"); 98-ORD-161, p. 3 (holding that "the three day statutory response time is not tolled by the absence of the agency's records custodian" ).
00-ORD-226, p. 2; see also 06-ORD-131, pp. 4-5. Based on these authorities, we believe it is incumbent on the City of Cumberland to designate an alternate records custodian to act in the City Clerk's absence, to discharge the duties imposed on all public agencies under the Open Records Act.
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 The City of Cumberland's response to Ms. Clark's appeal was addressed to the Office of the Kentucky Attorney General and a copy mailed to Ms. Clark. The City did not, and has not, directly contact Ms. Clark in writing. We know of no statutory basis upon which a completed audit can be withheld.