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 Kentucky Department of Fish & Wildlife Resources in relation to Kathy Gilliam's January 31, 2011, request violated the Kentucky Open Records Act. In failing to issue a written response within three business days of receipt, the Department violated KRS 61.880(1); additionally, neither the Department's initial response dated February 14, 2011, nor its response to Ms. Gilliam's appeal cited KRS 61.872(5) or provided a "detailed explanation" of the cause for the additional delay in providing access to any existing responsive documents or the "place, time and earliest date on which" those documents would be available. These procedural deficiencies constituted a violation of the Act. However, the Department ultimately provided Ms. Gilliam with access to any existing responsive documents and is not required to "prove a negative" in order to refute a claim that additional documents exist under
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005).
Ms. Gilliam requested the "Ivan Gibson seizure report from Officer Jason Slone dated November 20, 2009," Ivan Gibson's "booking fingerprints, " his "booking photo," and the "Inventory report" of his "vehicle/vessel" dated November 20, 2009, as well as Officer Slone's "2009 & 2010 employee evaluation[s]," Officer Slone's "new job title and rank," the "[in] car video of arrest of Ivan Gibson dated November 20, 2009," and the "seizure report." By letter dated February 14, 2011, Records Custodian Sharon Sparrow advised Ms. Gilliam that she was providing "the most recent personnel action for Jason Slone with his job title and employee evaluations from 2009 and 2010." Ms. Sparrow further noted that "[t]he rest of the documents responsive to your request are being reviewed by our Legal Department and will be release[d] when approved." By letter dated February 18, 2011, Ms. Gilliam initiated this appeal, correctly observing that she did not receive a written response to her written request within three business days nor did the Department comply with KRS 61.872(5).
Upon receiving notification of Ms. Gilliam's appeal from this office, Ms. Sparrow supplemented her initial response on behalf of the Department, explaining that she was enclosing the "seizure report for inventories items from Mr. Ivan Gibson's arrest dated 11/20/09" and the "current job duties/classification specifications for Officer Slone." 1 With regard to the remainder of Ms. Gilliam's request, Ms. Sparrow advised:
The following items you requested are not available for the following reasons: [(1) and (4)] seizure report and inventoried items of Mr. Gibson's vehicle/vessel dated 11/20/09 - Mr. Gibson's vehicle was not seized and per Department policy, vehicles that are not seized are not inventoried; [(7)] KDFWR does not have in-car video cameras in our vehicles; [(2)] and [(3)] booking fingerprints and booking photos are not maintained by KDFWR, these can be obtained from the county jail; (6) disciplinary action report - there is no disciplinary action report on Officer Slone. 2
In failing to issue a timely written response and produce any existing responsive documents per KRS 61.880(1) or, in the alternative, issue a timely written response citing KRS 61.872(5) and providing a detailed explanation of the cause for delay in producing the remaining documents in addition to a specific date when the documents would be available, the Department violated the Act from a procedural standpoint; however, this office has no basis upon which to find that a substantive violation was committed.
As a public agency, the Department 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 thereunder. 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 Department'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, this office must conclude that in failing to issue a written response to Ms. Gilliam's January 31, 2011, request within three business days of receipt and provide any existing responsive documents, the Department violated KRS 61.880(1) as it did not invoke KRS 61.872(5). In the absence of a legitimate detailed explanation of the cause for the delay in providing access, the Attorney General must conclude that Ms. Gilliam did not receive "timely access" to the records eventually provided.
Noticeably absent from the Department's February 14 response is any reference to KRS 61.872(5); also lacking is a detailed explanation of the cause for delay. On appeal the Department does not address either deficiency and its response(s) violated the Act in this regard. See 10-ORD-201 (City responded in a timely manner on both occasions but City Attorney initially advised that records containing some of requested information would be available within 45 days only to subsequently indicate (three days later) that said records, in addition to others, would be available within sixty days and City was found in violation of KRS 61.872(5)). Vague estimates of how long the delay will be, such as that provided in the Department's belated response, have been deemed insufficient for purposes of complying with KRS 61.872(5), requiring the "place, time, and earliest date" when records will be available for inspection. 08-ORD-006, p. 4 (City Clerk's response advising that it would be "a couple of weeks" before she could "get the copies together" without further explanation violated KRS 61.872(5)). See also 07-ORD-158 (Finance and Administration Cabinet's response that it was "in the process of filling" the request and expected to fill it "within the next two weeks" did not comply with KRS 61.872(5)); 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. "). To clarify, this office sees "nothing wrong with the [Department's apparent] policy of processing open records requests through its legal department. In our view, this policy ensures uniformity and adherence to the law. 93-ORD-134. However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4.
While a reasonable extension of time may have been justified on the facts presented (though certainly not as to nonexistent records), it was incumbent on the Department, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. A public agency response advising that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Open Records Act. 96-ORD-238, p. 3. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4. Any other interpretation of the 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., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, above, at 1041. Neither the initial nor the supplemental response by the Department contains the specificity envisioned by KRS 61.872(5); accordingly, the Department violated the Act from a procedural standpoint. However, the Department cannot produce that which it does not have.
On appeal Ms. Sparrow advised that some of the records being sought do not exist in the possession of the Department. As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. The right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1) , "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist as the Department ultimately did here in relevant part. The Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1.
Ms. Sparrow ultimately notified Ms. Gilliam that records corresponding to items 1-4 and 7 do not exist in the possession of the Department and explained why. 3 The Department now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Gilliam's apparent belief that such records exist. Addressing this dilemma, in Bowling, above, at 340-341, the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought existed in the possession of the agency. See, e.g., 06-ORD-042; 08-ORD-189.
The analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on this issue; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, the Department's response to Ms. Gilliam's request must be affirmed in this regard under Bowling and prior decisions of this office. To hold otherwise would result in the Department "essentially hav[ing] to prove a negative." 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 3. 4 Based upon the foregoing, this office finds no substantive error in the Department's ultimate disposition of Ms. Gilliam's request(s) but finds that it did violate the Act from a procedural standpoint in failing to afford her "timely access" to any existing responsive documents.
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 Any issues regarding these records or those initially disclosed to Ms. Gilliam are moot per 40 KAR 1:030, Section 6.
2 Because Item 6 of Ms. Gilliam's request was described as Officer Slone's "new job title and rank," which Ms. Sparrow initially provided, it is unclear how a "disciplinary action report," which Ms. Gilliam did not request, would be responsive.
3 In order to fully discharge its duty under KRS 61.872(4) the Department should not only have advised Ms. Gilliam that booking fingerprints and photos can be obtained from the "county jail" but should also have furnished her with "the name and location of the official custodian of the agency's public records. "
4 In other words, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3.