Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Oldham County Property Valuation Administrator relative to J. Albert Harrison's September 9, 2010, request for various financial and operational records of his office violated, or subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). 1 Although the PVA issued a timely written response to Mr. Harrison's request, he did not invoke KRS 61.872(5) and thus violated KRS 61.880(1) in failing to also provide timely access to all of the documents requested. "Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. " 05-ORD-064, p. 6. The PVA also placed "an unreasonable and illegal restriction" on Mr. Harrison's right of access insofar as he required Mr. Harrison to inspect responsive documents only during a certain time frame on a specific day, or have a scheduled appointment, instead of making the documents available during regular business hours. 02-ORD-165, p. 3. The PVA violated KRS 61.876(2) in failing to post rules and regulations adopted under KRS 61.876(1) in a "prominent location accessible to the public."
Mr. Harrison delivered his request (directed to Ron G. Winters, Administrator) on September 9. By letter dated September 10, Office Manger Cheri Sentelle advised Mr. Harrison that Mr. Winters was "out of the office on vacation this week to return on September 13, 2010," and that he would respond to Mr. Harrison's request "at that time." Having received no "notice of when the requested copies would be available," Mr. Harrison "went to the PVA office and personally requested" the opportunity to review the records being sought on September 15. Chief Deputy Barbara Winters, according to Mr. Harrison, "came to the front office and explained that the copies would not be ready until after [1:00 p.m.] on Friday as per the notice" that Mr. Winters had sent via certified mail on September 13 (within the statutory time frame of three business days), which Mr. Harrison apparently had not received. A verbal exchange between Mr. Harrison and Ms. Winters followed, the specifics of which are contested, but which resulted in Ms. Winters accusing Mr. Harrison of disrupting the office and ultimately calling the Oldham County Sheriff's Office. A few moments later a Deputy Sheriff appeared who requested that Mr. Harrison "step outside to discuss the matter with him" and Mr. Harrison did so. Mr. Harrison and Sheriff Steve Sparrow then "had a pleasant and extended conversation" regarding the matter at the Sheriff's Office, during which Mr. Harrison "agreed with him not to escalate the situation." This appeal followed.
In his September 15 letter of appeal, Mr. Harrison asked "for guidance . . . as to how future requests . . . to the PVA office should be handled" and for the PVA office to "be instructed to cease from its intimidating procedures that seem to arise immediately when the office personnel are questioned about any sensitive matter." Mr. Harrison maintained that he did not raise his voice nor did he "challenge" Mrs. Winters; rather, he "sought an explanation from her as to the manner in which her behavior conformed to the statute." Upon receipt of Mr. Winter's September 13 letter, but prior to the deadline for the agency's response to his appeal, Mr. Harrison supplemented his September 15 letter of appeal, stating his belief that the responses from the PVA did not meet "either the spirit or the letter of the law." Attached to Mr. Harrison's September 18 letter was a copy of Mr. Winters' September 13 letter, sent by certified mail, in which he merely reiterated that he was "out of the office on vacation and did not return to work until today September 13, 2010." Mr. Winters further advised Mr. Harrison that he would review "the request and send you a date and time you may review the requested documents." By certified letter dated September 15, Mr. Winters advised Mr. Harrison that he could review the documents requested on Friday, September 17, between 2:00 p.m. and 4:00 p.m. and that he could request additional time if needed.
In challenging these responses, Mr. Harrison argued that Mr. Winters could have "easily explained everything that he did in his September 15 letter" in the September 13 letter. Mr. Harrison further noted that "after the delayed production of the requested documents" he was not provided with all documents responsive to Item 1 of his request, 2 which "pertained directly and quite simply to professional services obtained by the PVA office in 2010," and was therefore going to file a supplemental request. With regard to his conversation with Mrs. Winters on September 17 regarding a discrepancy between "the procedure outlined in Mr. Winters' letter of September 15 and what was actually occurring in that moment," Mr. Harrison asserted that if Mrs. Winters "is writing the letters, then she should take credit for them by affixing her signature." Noting that "[t]he purported reason behind the delay in producing the documents rested with the redaction of certain information," Mr. Harrison observed that someone did redact "the bank account numbers on the first page of the bank statements and on each individual check image," but "it is shown on every page of the check image sheets." Finally, Mr. Harrison explained that when he asked Mrs. Winters for a copy of the rules and regulations (which are required under KRS 61.876), she told him "to make a formal request to obtain such a copy" and his "attempt to explain to her that the statute requires that such a document be posted prominently in the office was rudely rebuffed."
Upon receiving notification of Mr. Harrison's appeal from this office, Mr. Winters responded, essentially confirming the sequence of events which culminated in this appeal, with the exception of having a different recollection of the September 15 verbal exchange between Mrs. Winters and Mr. Harrison. 3 With regard to Mr. Harrison's request that Mr. Winters and his office cease its "intimidating procedures," Mr. Winters asserted that Mr. Harrison has "a personal vendetta" against him and has ever since losing the 2010 Primary Election for PVA, citing examples which, in his view, illustrate that Mr. Harrison is the person using such tactics. Mr. Winters indicated that his office "will continue to answer any and all open records request[s] in acco[r]dance with" the Open Records Act, quoting the language of KRS 61.872(5); however, Mr. Winters also indicated that his office has consistently notified Mr. Harrison in writing by certified mail "of the status of his request" within three (business) days. Quoting the language of KRS 61.870(5) and (6), Mr. Winters further clarified that he is the official custodian of records for the Oldham County PVA Office, a fact Mr. Harrison is aware of, and has been for more than two years.
In reply to Mr. Winters' September 27 response, Mr. Harrison argued that Mr. Winters "extends the inconvenience to the taxpayer several more days" than is permissible by waiting "until the third day or later to write and mail a letter of response," then "sending the letter via certified mail, " which gains him "at least another day and often two days or more" and, finally, sending a "typical response letter" which "sets out yet further delay by establishing some future date when I can go to his office to see the documents or pick up the copies." In utilizing these mechanisms, Mr. Winters "often manages to use up five to seven workdays between the time he receives my request and the time when the records are finally available to me." In addition, the deficient redactions ultimately made in this case, according to Mr. Harrison, demonstrate "there was no real reason for the delay other than to postpone delivery." Mr. Harrison addressed each of the specific examples Mr. Winters cited in support of his claim that Mr. Harrison is the person being hostile or intimidating; however, as previously indicated, such issues are beyond our scope of review and thus are not justiciable in this forum.
Addressing the procedural issue presented, this office finds that the PVA issued a timely written response within three business days (on September 13); 4 however, the PVA erred in failing to also notify Mr. Harrison that redacted copies of the documents requested were available for inspection within that period of time given that KRS 61.872(5) was not invoked nor does it appear to apply inasmuch as the records apparently were not "in active use, in storage or not otherwise available[.]" 5 As a public agency, the PVA is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for responding to requests made pursuant to the Act.
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.
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 PVA'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:
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.
01-ORD-140, pp. 3-4 (emphasis added). As in 01-ORD-140 (copy enclosed), this office must conclude that insofar as the agency failed to produce the records for inspection within three business days (or advise Mr. Harrison of as much in the September 13 response), albeit by a relatively small margin and seemingly due to a good faith misunderstanding of KRS 61.880(1) and/or 61.872(5), the fact remains that Mr. Harrison did not receive "timely access" to the records.
In a seminal decision addressing these duties, the Attorney General emphasized that "[n]othing 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)," neither of which the agency invoked here. 93-ORD-134, p. 3. More recently, this office reiterated that any extension of this deadline for disclosure "must have a statutorily recognized basis [records in active use, in storage or not otherwise available], must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain." 08-ORD-021, p. 6 (original emphasis). If none of the conditions are satisfied, as in this case, a public 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. 02-ORD-165, p. 3, citing 93-ORD-134. On this issue, 07-ORD-179 is controlling; a copy of that decision is attached hereto and incorporated by reference.
In his September 15 response the PVA notified Mr. Harrison of when he could access the documents requested. Mr. Harrison was ultimately provided with access to same and the minimal delay appears to be attributable to a misunderstanding of KRS 61.880(1); however, the PVA is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests submitted pursuant to the Open Records Act. While this office appreciates the challenges impeding the ability of the PVA to comply in this instance, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3. In the event that the official records 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; 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"). See also 96-ORD-185. "It is incumbent on [the PVA], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 682 (Ky. 1992), and the recognition that "the value of information is partly a function of time." Fiduccia, supra, at 1041. As the Attorney General has long recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-125, p. 5.
Given this determination, the question becomes whether the PVA erred in permitting Mr. Harrison to inspect any responsive documents only during a designated time frame of his choosing or, in other words, essentially requiring Mr. Harrison to have a scheduled appointment for inspection (September 17 between 2:00 p.m. and 4:00 p.m.). In construing KRS 61.872(3), which mandates that public agency records be accessible by the public "during the regular office hours of the public agency, " this office has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted). The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours," neither of which has been established here. Id. Under those circumstances, the Open Records Act contemplates that the public agency and the requester will agree upon a mutually convenient time and place for the requester to inspect public records. Id., pp. 4-5 (citation omitted). "In the interest of absolute clarity," this office reiterates that Mr. Harrison (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the [PVA]." Id., p. 5.
The final justiciable question presented turns on the requirements codified at KRS 61.876. Mr. Harrison requested a copy of the rules and regulations presumably adopted in compliance therewith apparently because none were posted. On appeal, the PVA did not choose to address Mr. Harrison's claim regarding his apparent failure to comply with KRS 61.876. As the Attorney General has long recognized, KRS 61.876(1) and (2) are:
. . . aimed at [ensuring] that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [Footnote omitted.] . . . [Public agencies] must adopt rules and regulations pertaining to [their] open records polic[ies], or [they] may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs. [They] must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them. . . .
94-ORD-12, pp. 6-8; 98-ORD-200. Early on, this office held that KRS 61.876 requires each public agency to adopt rules pertaining to public records and to post same; failing to do so constitutes a violation of the Open Records Act. OAG 78-340. See also 04-ORD-053. The PVA does not refute Mr. Harrison's allegation that no such rules and regulations have been posted in his office. Because the "broadest possible dissemination" of a public agency's rules and regulations concerning access to public records is mandated by both the letter and the spirit of the Act, the PVA stands in violation of the Act to this extent.
Finally, with regard to whether the PVA provided "suitable facilities" within the meaning of KRS 61.872(1) , or instead created a hostile or intimidating environment which subverted the intent of the Act short of denial, the issue on which both parties dwell, this office refers the parties to 02-ORD-094 and 03-ORD-183 for guidance, but declines to make a finding on this issue given the conflicting evidence presented on appeal. In closing, this office reminds the parties that "[i]n rendering a decision under the Open Records Act, the Attorney General is not concerned with 'heroes and villains.'" 93-ORD-15, p. 6; 07-ORD-179, p. 7. Rather, in the "final analysis, we assume a modicum of good faith from both parties to an open records appeal[.]" Id.
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.
J. Albert HarrisonCherie SentelleJeff MosleyRon G. Winters
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 In 05-ORD-236, the Attorney General expressly recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." Id., p. 3 (reporter questioned the validity of invoices produced in response to request, and the Attorney General advised that the relief sought was unavailable under the Act). As the Attorney General cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided," this office would not be able to resolve any such issues even if Mr. Harrison's appeal was not focused on procedural issues. 03-ORD-061, p. 2(citation omitted). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal); 04-OMD-182 (questions regarding the authenticity of an agency's meeting minutes were not appropriate for review by the Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request; the Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records; the Attorney General refused to consider this issue).
3 Mr. Winters asserted that Mr. Harrison "refused" to leave the office after Mrs. Winters explained repeatedly "that the items requested were not ready" and then asked him to leave if he did not have any further business. After "numerous attempts to get him to leave," Mr. Winters asserted, Mrs. Winters advised him that "he had a choice to leave on his own or the police would escort him out and that he had two minutes to make his decision." The parties disagree as to whether Mrs. Winters did, in fact, wait for two full minutes before calling the Sheriff's Office, among other things. This office is unable to conclusively resolve conflicting factual narratives, including this one and the specifics of the opposing versions of the history between the parties, a subject on which Mr. Harrison and Mr. Winters adamantly disagree as well.
4 To clarify, the Office of the PVA received Mr. Harrison's request on Thursday, September 9; accordingly, the Office had Friday, September 10, Monday, September 13, and Tuesday, September 14, in which to mail a written response. Accordingly, Mr. Winters' September 13 response was timely if not otherwise sufficient. His September 15 response was untimely as well as deficient in failing to either properly invoke KRS 61.872(5) or advise that all of the records were available for inspection as of that date although the delay until September 17 was minimal and may well have been justified if the agency had offered a detailed explanation of the cause.
5 Even assuming that any of these conditions were satisfied, the agency's September 10 and September 13 responses did not contain the requisite "detailed explanation of the cause for delay" nor specify the "earliest date" on which the records would be available for inspection.