Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Bardstown violated the Kentucky Open Records Act in the disposition of Kevin Brumley's April 17, 2012, request for a copy of the minutes and the "official recording " of when the Bardstown City Council "discussed in open session and voted " to amend " any ordinance found in Chapter 36 of the Bardstown Code of Ordinances, prior to the first reading of B2012-01 on January 26, 2012 at the special meeting, " and same for Chapter 33 prior to its first reading of B2012-02 at the January 26 meeting. (Original emphasis.) Mr. Brumley also requested "a copy of the minutes of the City Council showing the discussion and vote to approve the mayors [sic] Fire Chief [S]election [C]ommittee on or after January 26, 2012," "a copy of who the members are of" the Committee, "a copy of all minutes of the" Committee "from its inception until April 17, 2012," "a copy of all the official recordings of" the Committee for the same period, "a copy of all letters, emails, or any other public records as defined by the Open Records Act between any member of the" Committee and "any employee and/or official including but not limited to Mayor Sheckles," for the same period, and "between any employee and/or official of" the City, including but not limited to Mayor Sheckles, to City Attorney Tom Donan from January 16, 2012 to January 26, 2012 that mentions promulgating and/or amending any ordinance," including, but not limited to those found in Chapters 33 and 36, and, finally, "a copy of the Notice of the Special Meeting for January 26, 2012." (Original emphasis.) In failing to either provide Mr. Brumley with access to all existing nonexempt documents responsive to his written request within three business days per KRS 61.880(1), or properly invoke KRS 61.872(5), if applicable, by citing that provision and providing a detailed explanation of the cause for delay, as well as the "place, time, and earliest date on which" the documents would be available for inspection, the City violated the Open Records Act from a procedural standpoint.
Mr. Brumley delivered his request on April 17, 2012, to a receptionist at Bardstown City Hall. City Clerk/Records Custodian Bobbe Blincoe was not in the office. By letter dated April 20, 2012, City Attorney Thomas A. Donan issued a timely, but otherwise deficient response by U.S. mail, providing the minutes of the City Council's January 24, 2012, regular meeting and its January 26 special meeting, the notice for the latter, and e-mails that were exchanged between Bobbe Blincoe and Tom Donan on January 26. Mr. Donan further advised Mr. Brumley that "[w]e are continuing to research your other requests and will provide you with the documents upon completion of our efforts." On April 24, 2012, Ms. Blincoe called Mr. Brumley to advise that all existing responsive documents were available. Her written response consisted of notations made on a copy of his original request. Specifically, Ms. Blincoe advised in a note located on the top of the page that "[d]ue to a state Clerk's Conference, I did not receive request until 4-20-12 (Friday)." The other handwritten notations in the margins indicated that each of the minutes and recordings described at items 1-5 of the request were "Not available" without elaboration, but minutes from the City Council's January 24 and 26 meetings were attached in addition to a copy of the recording of its January 26 meeting. Ms. Blincoe also enclosed a copy of a record containing the names of the Selection Committee members 1 and the requested minutes of its meetings. Focusing exclusively on the failure of the City to provide him with timely access to all existing responsive public records, 2 Mr. Brumley initiated this appeal by letter dated April 26, 2012.
Upon receiving notification of Mr. Brumley's appeal from this office, Mr. Donan supplemented the City's response, advising that Mr. Brumley was informed on April 17 that the Clerk would not return until April 20. "It is undisputed that when the City Clerk returned from the convention on Friday, April 20," Mr. Donan explained, "that she contacted the City Attorney and advised that she was not going to be able to produce all the requested records on that date." Because all of the records being sought "would not be available to deliver to Mr. Brumley on that date," Mr. Donan further observed, "[i]t was agreed that the City Attorney would respond to the Request on the City's behalf." Having summarized the content of his April 20 letter, Mr. Donan quoted KRS 61.880(1), asserting that the City issued a written response to Mr. Brumley's request "under the official custodian's authority" within three business days. 3 "The City did in fact produce the additional documents two (2) business days later on Tuesday, April 24, 2012. Finally, with respect to records which did not exist, the Clerk made the notation "not available record[.]" In sum, the City "acted in accordance with the [Open Records Act] in responding to" Mr. Brumley's request according to Mr. Donan. Although the delay was minimal in this instance, given the mandatory and express language of KRS 61.880(1) and 61.872(5), and the long line of decisions applying same, this office must respectfully disagree.
Mr. Brumley was not required to pay the copying fee or postage costs per KRS 61.874(1), prior to receiving the copies included with Mr. Donan's initial response, but had apparently expressed his preference (verbally) to pick up any responsive public records from the City Clerk rather than receive copies in the mail though his written request did not specify as much. Mr. Brumley picked up the records on April 24, and the nature of his complaint in this regard, aside from the delay, is unclear given that Mr. Donan acted under the authority of the official custodian and nothing else is required under the Act.
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As a public agency, the City 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 City'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 Mr. Brumley's April 17, 2012, request within three business days of receipt and provide any existing responsive documents, the City 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 Mr. Brumley did not receive "timely access" to the records eventually provided.
Noticeably absent from the City's April 20 response is any reference to KRS 61.872(5); also lacking is a detailed explanation of the cause for delay. On appeal the City 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 City's original 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 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. "); 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)); 09-ORD-191 (noting that Attorney General has "repeatedly stated that the three day period of limitation for agency response codified at KRS 61.880(1) cannot be extended to accommodate the schedules of agency staff"). To clarify, notwithstanding the fact that Mr. Donan is not the official records custodian for the City, this office sees "nothing wrong with the [City'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.
None of the permissible reasons for delay identified at KRS 61.872(5), the only exception to KRS 61.880(1), appear to apply here, nor was any extension of time justified as to nonexistent records. It was incumbent on the City, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. 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; 05-ORD-064. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. 02-ORD-165, p. 3; 05-ORD-064. 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. Rather, "[t]he 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. See 08-ORD-006; 10-ORD-201; 11-ORD-196. Neither the initial nor the supplemental response by the City contains the specificity envisioned by KRS 61.872(5) ; accordingly, the City violated the Act from a procedural standpoint, and the City Clerk's absence did not mitigate this error.
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:
Kevin BrumleyThomas A. DonanBobbe Blincoe
Footnotes
Footnotes
1 This office has long recognized that a public agency is not statutorily required to create a record or compile a list in order to comply with a request under the Act; however, in lieu of doing so a public agency must provide the requester with an opportunity to inspect existing non-exempt records which may contain the information being sought. See 09-ORD-145, pp. 8-9.
2 Mr. Brumley noted that "Appellee has sent records that were not the records requested, BUT the Appellant is not going to belabor that fact, as the Appellee has inadvertently sent unrequested 'research' documents that more than compensates [sic] for any intentional deceitful acts of the Appellee!" (Original emphasis.) The record is devoid of any evidence to suggest bad faith on the part of the City; however, its original response should have advised Mr. Brumley that certain records did not exist as its response(s) was "tantamount to a [partial] denial and . . . it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9. In other words, if a record "of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 09-ORD-019; 09-ORD-145. Because a public agency cannot produce nonexistent records for inspection or copying, nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist under governing law, and Mr. Brumley's letter of appeal makes it clear that he is concerned exclusively with the City's failure to provide timely access, further discussion is unwarranted. See Bowling v. Lexington-Fayette Urban County Government 172 S.W.3d 333 (Ky. 2005); 07-ORD-188; 07-ORD-190; 10-ORD-201; 11-ORD-081.
3 Mr. Donan also referencedKRS 61.872(3)(b) without further comment. Guidelines for inspection of public records are codified at KRS 61.872, pursuant to which:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.