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 Campbell County Public Library subverted the intent of the Open Records Act, 1 short of denial of inspection, by failing to afford Charles Coleman timely access to 22,117 records responsive to his March 2, 2012, request for "emails, ongoing and preserved, dating from January 1, 2011, to the present," in library director J.C. Morgan's email account. Given the number of records implicated by Mr. Coleman's request, and the necessity of reviewing each to insure that statutorily protected information is not disclosed, we find that the projected six month deadline for disclosure, if strictly adhered to, does not subvert the intent of the Act. In reaching this decision we note that, to the extent relevant, the equities do not weigh in either parties' favor. Having amended his original request by reducing its scope to Mr. Morgan's email account only, 2 Mr. Coleman was unwilling to further limit his request to email exchanged by Mr. Morgan and identified individuals, or to email pertaining to a particular topic, or to email generated in a narrower time frame. Having agreed to honor the amended request, rather than deny it as unreasonably burdensome, Mr. Morgan was unable to "produce the responsive records within three business days" because his email account contained in excess of 22,000 emails. This suggests that he had not properly managed his email account.
In correspondence transmitted on March 5, 2012, Mr. Morgan advised Mr. Coleman that "[g]oing through [the 22,000 plus records in his email account] will, at a minimum, require six months of review by me and the library's legal counsel. " He explained that the records included "personnel actions, personal information of patrons, passwords and other key information, [and] communications between myself and the Library's legal counsel that pertain to litigation or the threat of litigation [which] . . . would be excluded, per KRS 61.878, from Open Records" and which the library was obligated to withhold. As an alternative to this time consuming review process, he urged Mr. Coleman "to provide a narrower range of subjects that you are interested in, a list of recipients, or a tighter date range." Mr. Coleman refused to do so, rejecting the minimum six month extension but agreeing to a three week extension. The parties having reached an impasse, Mr. Coleman initiated this appeal.
In supplemental correspondence directed to this office, library counsel Louis D. Kelly invoked KRS 61.872(5) permitting public agencies to extend the three day mandatory response time if the requested records are in active use, in storage, or otherwise unavailable. He acknowledged that the library "did not cite the provision explicitly in its response, . . . [but maintained that his client] certainly provided the information required under the Open Records Act. " Mr. Kelly reiterated that the library must review more than 22,000 records "[b]ecause the emails . . . are not limited by subject or recipient, many of these messages likely contain personal information regarding staff, preliminary recommendations or memoranda, privileged communications with legal counsel, or other information which would be exempt under KRS 61.878," emphasizing that "the library's Director must accomplish this review while still performing his official duties." In closing, he offered assurances that the library would "provid[e] the documents at the earliest date."
In 01-ORD-140, this office 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 . . . this office made abundantly clear . . . 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 82-300, 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 (emphasis added).
01-ORD-140, p. 3, 4.
In 01-ORD-140, we rejected the agency's claim that it had not subverted the intent of the Act, short of denial of inspection, by postponing access to three specifically identified documents, and invoices for legal services submitted by a named law firm in a three month period, while the custodian of records vacationed for thirteen days. The custodian acknowledged that he knew "precisely where the documents were located" and did "not assert that the records contained a mixture of exempt and nonexempt information, necessitating review prior to disclosure for purposes of redaction." 01-ORD-140, p. 5. In closing, we reminded the agency that:
Until such time as the legislature acts to afford relief to agencies from the requirement of disclosure of public records within three business days of receipt of the request, we are bound to strictly construe [KRS 61.872(5)], along with the other requirements found in the Open Records Law.
01-ORD-140, p. 7, citing Courier-Journal and Louisville Times v. University of Louisville Board of Trustees, 569 S.W.2d 374 (Ky. 1979) quoting Board of Public Instruction v. Doran, 224 So.2d 693 (Fla. 1969).
We contrasted the facts giving rise to 01-ORD-140 with the facts giving rise to OAG 92-117. In the latter open records decision, we found that the record on appeal supported an agency delay of twenty-one days in honoring an open records request. There the agency, Department for Social Services, demonstrated that it served one-hundred and twenty-three local offices in one hundred and twenty counties across the state each of which maintained its own records. Requests for records maintained in local offices were nevertheless processed by and through the Department for Social Services which was obliged, upon receipt of a request, to locate the records in the appropriate county office, retrieve those records, and review them before releasing them for inspection. Given the broad scope of the request ("any and all records in the possession of the [then] Cabinet for Human Resources 3 upon which [requester's client's] name appears or which may concern her"), the ongoing nature of the Department's investigation into the requester's client, and the need to obtain a copy of the records and review them upon conclusion of the investigation but prior to making disclosure, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis 'timely access.'" OAG 92-117, p. 5.
Obviously, six months represents a far greater delay in producing public records than twenty-one days. We do not endorse such a delay under any circumstances other than the extreme circumstances presented in this appeal. Mr. Coleman's request implicates a vast number of records. Were Mr. Morgan to devote 7.5 hours each work day in the next six months to the task of reviewing each of the 22,117 records implicated, as the library proposes, he would be required to review 184 records per day or 24 records per hour. If he were to devote 7.5 hours each work day in the next three weeks, as Mr. Coleman proposes, he would be required to review 1,474 records per day or 197 records per hour. While he has made a commitment to complete the task by the earliest possible date, and to dedicate his efforts to that end, he has not committed, and cannot responsibly commit, to dedicate every working hour to the fulfillment of Mr. Coleman's request. While it may well have been "the legislative intent [in enacting the Open Records Law] that public employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, such a commitment would "require a level of 'patience and long-suffering' that the legislature could not have intended." 95-ORD-47, p. 6.
We therefore conclude that the library cannot be said to have subverted the intent of the Open Records Act, short of denial of inspection, by postponing access to the nonexempt records responsive to Mr. Coleman's request for a period of six months. Clearly, this represents the outer most limit of acceptable delay, and the library must firmly commit to releasing the records to Mr. Coleman on or before September 5, 2012. As this office has so often noted, 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. 8; 98-ORD-3; 06-ORD-126; 08-ORD-021; 12-ORD-043. "[A] projected or speculative date," does not satisfy the requirement of the statute. Id. We trust that the library will fulfill its commitment on or before September 5.
We would be remiss in failing to note that KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. " Kentucky's highest court implemented this legislative finding in Commonwealth v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008), declaring that an agency "should not be able to rely on any inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Mr. Coleman's request was broadly worded, though not "improper," and he rejected Mr. Morgan's request that he further narrow it by subject, recipient, or date range. 4 To his credit, Mr. Morgan did not characterize the request as unreasonably burdensome but instead agreed to honor it. Nevertheless, he was unable to fulfill the request within the statutorily mandated three day response time owing to the vast number of records he maintained in his email account. Had library staff engaged in proper records management, consistent with guidance and training available through the Kentucky Department for Libraries and Archives, 5 the volume of responsive records, and corresponding burden to produce them for inspection under the Open Records Act, would have been significantly decreased. We urge the staff of the Campbell County Public Library to review KDLA's website and implement "best practices that are designed to assist agencies in the management of their email records." Guidelines for Managing Email in Kentucky Government , http://kdla.ky.gov/records/Documents/EmailGuidelines.PDF.
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.
Distributed to:
Charles ColemanJ. C. MorganLouis KellyBarbara Teague
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 Mr. Coleman originally requested all email generated by all library employees from January 1, 2011, totaling in excess of 340,000 records.
3 Now the Cabinet for Health and Family Services.
4 Such broadly worded requests for "all email" sent or received by a particular person or persons, or related to a particular subject, or within a stated timeframe, have become increasingly common. Although such requests are not "improper," they could not have been envisioned by the General Assembly in adopting a three working day statutory deadline for records production when the Open Records Law was enacted in 1976, and applicants submitting requests cannot reasonably expect agencies to which these requests are directed to produce all responsive records within the three day deadline. Applicants are therefore urged to frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production.
5 http://kdla.ky.gov/records/recmgmtguidance/Pages/elecrecmgmt.aspx