Request By:
Sara M. Hogsed
James M. Tolley
R. Brandon Knoth
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 Pennyrile District Health Department subverted the intent of the Open Records Act, short of denial of inspection, in the disposition of Kentucky New Era staff writer Sarah Hogsed's July 14, 2009, request for "[c]opies of all retail food establishment reports from 2008 and 2009." For the reasons that follow, we find that the Department subverted the intent of the Act by failing to afford Ms. Hogsed timely access to the requested records. In addition, we find that although the Department "waived" its demand that Ms. Hogsed submit her request in person and on the Department's preprinted form, along with a photo I.D., and that she pay "all cost associated with the recovery and photocopying" of the requested records, these demands contravene the provisions of the Act and cannot be enforced against other open records requesters seeking access to records for a noncommercial purpose.
In an emailed response dated July 14, Public Health Director James M. Tolley disputed Ms. Hogsed's request for copies of the records within three business days, asserting that the Department was only obligated to notify her whether it would honor her request within that time frame. Continuing, Mr. Tolley advised Ms. Hogsed:
We will comply with your request but have a new criteria that you must follow for the protection of our clients. # 1 Request in person with a signature on a form provided by us for an open records request, present with a photo ID to sign the form in the presence of an employee of the Health department for photo ID verification. . . . Your request will be fulfilled in a reasonable period of time once you comply with these steps. Keep in mind two years of information is quiet [sic] time consuming and you will be charged as allowed by law all cost associated with the recovery and photocopying of these records.
Ms. Hogsed notified Mr. Tolley that the "Department's criteria" for making a request violated the Open Records Act, specifically KRS 61.872, relating to inspection and copying of public records, proof of identity, and transmission of a request, and KRS 61.874, relating to reasonable copying fees. In support, she referenced a number of open records decisions issued by this office. One day later, she clarified her request asking that the Department provide her with:
1. The printout report from the computer system the food reports are input that shows each month which establishments were inspected and what their scores were;
2. Copies of the handwritten triplicate forms/checklists that are filled out onsite during the inspection.
On July 20, Lyon County Attorney R. Brandon Knoth reaffirmed the Department's position, providing Ms. Hogsed with "a standard Open Records Request form," and asking that she complete the form and return it to the Department. Mr. Knoth again asked for "any specificity [she] could provide on the form that may narrow the scope," and explained that it "may take up to ten business days to properly respond" in view of "the scope of [the] request as currently submitted and the Department's limited workforce. "
In supplemental correspondence directed to this office following commencement of Ms. Hogsed's appeal, Mr. Tolley elaborated on the Department's position. In the first of these letters, he explained:
[Ms. Hogsed] has not requested to inspect public records; she has requested we make copies of records. See OAG 76-375. If a person has not inspected the records he desires to copy and cannot describe them with specificity there is no requirement that copies of any records must be delivered to him. The OAG 76-375 opinion written which states in part the right to have copies is ancillary to the right of inspection and does not stand by itself.
We have made copies and made them available on July 28, 2009 of what we concluded Ms. Hogsed was seeking. The cost to this agency was considerable. We believe as an employee of the Kentucky New Era, a commercial business, we could have charged a fee. However, only a charge of $ 18.60 was imposed to cover the cost of the photocopies (ten cents per copy, 186 x .10 = $ 18.60).
In a second letter, Mr. Tolley addressed additional matters, disputing Ms. Hogsed's interpretation of KRS 61.880 as it relates to timely access to public records, but indicating that following receipt of her July 15 letter he had "dropped [the] request" that she appear in person to make her request, that she use the agency's preprinted form, and that she produce a photo ID.
With reference to the delays in producing the requested records, he noted that the environmental staff was out of the office on July 15 and 16, and that the individual to whom the request was originally directed was out of the office on July 17 and again on July 20-24. Accordingly, Mr. Tolley asserted, "manpower to comply with Ms. Hogsed's request was not available until July 28." In closing, he stated that the Department notified Ms. Hogsed that copies of all establishment inspection reports from 2008 and 2009 were available at the Trigg County Health Center and would be released to her upon prepayment of the $ 18.60 copying charge. Mr. Tolley therefore maintained that the Department did not deny her request, but that it instead "diligently tried to accommodate Ms. Hogsed." Although Mr. Tolley correctly states that the Department did not deny Ms. Hogsed's request, we find that it impeded her access to the records sought by attempting to impose impermissible requirements on her and postponing its search for these records until "manpower to comply with [her] request was . . . available."
This office has long recognized that the Open Records Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." See, e.g., 01-ORD-140; 04-ORD-138; 05-ORD-134; 06-ORD-180; 08-ORD-250; 09-ORD-007. Addressing the same argument the Department raises in defense of its delayed production of records, in 01-ORD-140 we 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 [agency'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. 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, cited by [the agency] for the proposition that the Act does not prescribe a reasonable time for affording access to public records, this office made abundantly clear, in the sentence immediately following the sentence [the agency] quotes, that the Act "normally requires an 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 84-300, 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 delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
01-ORD-140, p. 3, 4. The record on appeal is OAG 92-117 supported an agency delay of twenty-one days in producing the documentation sought. Although there are occasions when records cannot be produced within three business days, as contemplated by the referenced statute, this is not the case in the appeal before us.
In its original response, the Department offered no explanation for the delay in producing responsive records, and failed to state the earliest date on which they would be produced. Subsequent correspondence issued on behalf of the Department projected a ten business day delay "to properly respond," attributing the delay to the "scope of [the] request as currently submitted and the Department's limited workforce. " Neither response suggested that the records could not be immediately produced because they were "in active use, in storage, or not otherwise available" per KRS 61.872(5).
In correspondence directed to this office following submission of Ms. Hogsed's appeal, the Department again described "the amount of information" originally requested as "staggering," and recounted the reasons for its staff shortages following receipt of the request, indicating that "[t]he manpower to comply . . . was not available until July 28 . . . ." It was, however, on the same day, July 28, that Ms. Hogsed was notified that "all the information she requested was available." We must therefore assume that one day or less was required to fulfill Ms. Hogsed's request and that her request implicated only 186 records, none of which were characterized as being "in active use, in storage, or not otherwise available."
KRS 61.880(1) sets forth the legal obligations of a public agency upon receipt of an open records request. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law and is as much a legal obligation of a public agency as the provision of other services to the public, notwithstanding the absence of a full workforce.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in 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 provide the requester with timely access to the requested records.
03-ORD-134, p. 3. It is incumbent on the Pennyrile District Health Department to make proper provision for the uninterrupted processing of open records requests even in the face of staff shortages or budgetary constraints.
In an early open records opinion, this office recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, p. 3. Recently, the Kentucky Supreme Court affirmed this view opining that "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden." Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008). In the absence of a plausible explanation for the delay in producing the records identified in Ms. Hogsed's request, we find that the Department subverted the intent of the Open Records Act by failing to afford her timely access to the requested records.
We will not unnecessarily lengthen this decision with a recitation of the basic tenets of the Open Records Act relative to submission of requests and production of copies. Instead, we refer the Department to KRS 61.872 and KRS 61.874 and the open records decisions cited by Ms. Hogsed in support of her objections to its "criteria" for records access. In the interest of absolute clarity, we find:
. that requesters cannot be required to personally submit their requests on preprinted request forms, or affix their signatures to their request in the presence of an agency employee;
. that receipt of copies of records is no longer conditioned on onsite inspection of those records, that requirement having been abandoned in 1992;
. that agencies may only recover their actual costs for reproduction of public records, not including the cost of staff required, if the records are requested for a noncommercial purpose; and
. that KRS 61.870(4)(b)1. Excludes from the definition of "commercial purpose" the "[p]ublication or related use of a public record by a newspaper or periodical."
The existing statutory time frames were established by the General Assembly in 1976. Until such time as the legislature amends the statute to afford relief to agencies from the requirement of disclosure of public records within three days of receipt of a request, we are bound to strictly construe this, along with the other requirements found in the Open Records Law. "Statutes enacted for the public benefit should be interpreted most favorably to the public." Board of Public Instruction v. Doran, 224 So.2d 693 (Fla. 1969) cited with approval in Courier Journal and Louisville Times Co. v. University of Louisville Board of Trustees, 569 S.W.2d 374 (Ky. 1979).
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.