Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in this appeal is whether Oldham County Planning and Development Services violated the Open Records Act in the disposition of Richard and Doreen Carlson's December 23, 2011, request for a copy of the file pertaining to "2900 Barrickman Lane in Goshen, KY 40026," specifically in failing to provide timely access to said file. Having received no written response from Director Jim P. Urban, the Carlsons provided him with a "list of essential construction documents highlighted in red requested for copy or viewing at a designated place and time" by letter dated January 12, 2012, further advising that the Oldham County Property Valuation Administrator had already provided "all documents in their possession for Barn Permit # 0827898 but the essential structure drawings were not included. Only the Property Card was provided for the House. No documents are at PVA for the existing Office Duplex reconstruction of the Barn that took place sometime in 2010-2011." 1
In their July 13, 2012, appeal the Carlsons focused, in relevant part, on whether the agency responded within the "statutory time limit" to their December 27, 2011, and January 12, 2012, requests. Upon receiving notification of the Carlsons' appeal, Mr. Urban responded on behalf of Planning and Development, in relevant part acknowledging that "the December ORR was not answered in a timely manner" but a December 14 request was answered. 2 Mr. Urban also provided another copy of all existing responsive documents. The Carlsons reiterated in reply that the instant appeal "is seeking a decision on the 3-day response limit from the December 27, 2011 request and another set of file copies was not necessary." If there was "confusion or need to extend the response time, " the Carlsons asserted, "Mr. Urban produced no document prior to January 23, 2012 [when the records were released] to inform" them of that fact. Although the record on appeal reflects that a variety of related issues exist in the background of the subject requests/appeal, in addition to factual disputes concerning related events, all of which are beyond our purview, 3 the relevant facts are undisputed and the relevant law is well-established.
As a public agency, Planning and Development Services 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 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:
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, and, for example, 07-ORD-179, 10-ORD-199, and 11-ORD-035, this office must conclude that in failing to issue a written response of any kind to the Carlsons' December 23, 2011, request within three business days of when it was received on December 27, 2011, and provide any existing responsive documents, the agency 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 delaying access until January 23, 2012, the Attorney General must conclude that the Carlsons did not receive "timely access" to the records eventually provided. Noticeably absent from the agency's belated response is any reference to KRS 61.872(5); also lacking is a detailed explanation of which permissible reason for delay applied here, if any. On appeal the agency does not address either deficiency. When viewed in light of existing legal precedents, the record on appeal validates the Carlsons' position that a procedural violation was committed.
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:
Richard and Doreen CarlsonJim P. UrbanJohn K. Carter
Footnotes
Footnotes