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 Oldham County Board of Adjustments and Appeals violated the Kentucky Open Records Act in partially denying Judy Ponder's September 20, 2012, request for "[a]ll VIDEO recordings, from beginning to end, for all of the September 20, 2012 Board of Adjustments and Appeals hearings including any hearing breaks/recesses, and any audio-free video of closed sessions, etc.," the "approved minutes of the August 16, 2012 Board hearing that were to be approved at the September 20, 2012 Board hearing," "the "documents (Exhibits, Drafts, etc.) that were handed out or discussed at the September 20, 2012 hearing, involving the Board Bylaws," and "[e]ach [e]mail to and from your and your subordinates' offices, as both as [sic] addresses &/or copy recipient, related to the Board's Bylaws, and/or the Board's August 16, 2012 discussion of same[.]" In a timely written response, Records Custodian/ Oldham County Planning & Development Services Director Jim P. Urban agreed to provide Ms. Ponder with copies of the approved minutes from the August 16 Board hearing and the documents that were discussed/distributed at the September 20 hearing, but advised that the "recording system for the meetings in the Fiscal Court room is currently inoperable and staff is unable to retrieve or copy the video recording of the September 20, 2012 Oldham County Board of Adjustment meeting." With regard to any e-mails responsive to Ms. Ponder's request, Mr. Urban asserted that "[o]nly emails that constitute a decision are considered public record. No decisions were made related to the Board's Bylaws; therefore no emails are being provided[.]" 1 Arguing that the Board violated KRS 61.872(5) in failing to advise her of the approximate date and time when a copy of the recording could or might be made available to her, and violated KRS 61.880(1) in failing to cite a specific exception authorizing the withholding of the e-mails requested, Ms. Ponder subsequently initiated this appeal.
In failing to properly invoke KRS 61.872(5) in writing, 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 recording would be made available (or at least an estimate based on available information), the Board violated the Open Records Act from a procedural standpoint. Additionally, the Board violated KRS 61.880(1) in failing to "include a statement of the specific exception authorizing the withholding" of any responsive e-mails "and a brief explanation of how the exception applies" to said records. While KRS 61.878(1)(j) , upon which the Board implicitly relied, authorizes the agency to withhold any e-mails which consist entirely of preliminary recommendations and/or preliminary memoranda in which opinions are expressed or policies formulated or recommended, unless they have been adopted, in part or in whole, as the basis for any final action, its original response was deficient and its response to Ms. Ponder's appeal cited the applicable statutory exception but otherwise lacked the requisite specificity.
Upon receiving notification of Ms. Ponder's appeal from this office, Oldham County Attorney John K. Carter responded on behalf of the Board. In support of his position that Mr. Urban properly responded to Ms. Ponder's request for the specified video recording and e-mails, Mr. Carter asserted:
A public agency is not required to produce a record that does not exist. 12-ORD-162, p. 6. At the time [Mr.] Urban responded to [Ms.] Ponder's request the recording system was inoperative and the existence of any records, including those requested by [Ms.] Ponder, was uncertain. [Ms.] Ponder has made no further request for this video recording other than her open records request of September 20, 2012. [Mr. ] Urban has advised this office that the recording system is operative, the records requested by [Ms.] Ponder were not erased and are available even though some recordings had been lost. Upon request by [Ms.] Ponder these records will be timely provided. The ORA does not permit a continuing request for records that may, or may not, become available in the future. 2
. . . Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended are not subject to the Open Records Act. KRS 61.878(1)(j). [Ms.] Ponder's complaint that [Mr.] Urban failed to identify the specific exception under which this request was denied is erroneous. Statute specificity is not required by KRS 61.880(1). [Mr.] Urban was not required to cite the specific statute but only the specific exception, which he did, and a brief explanation of how the exception applies to denial of the record requested, which [Mr.] Urban also did.
Based upon the following, this office finds the Board's response both procedurally and substantively deficient.
Public agencies must comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 3 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. Specifically, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." 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). . . . [T]he 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 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. 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, pp. 3-4.
More recently, this office reaffirmed that any extension of the statutory time frame of three business days "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); see 06-ORD-126. Noticeably absent from both of the responses by the Board is any reference to KRS 61.872(5), the only exception to KRS 61.880(1). The Board advised Ms. Ponder that the recording system was "currently inoperable" and staff was therefore "unable to retrieve or copy" the requested video recording, which is a permissible reason for delay insofar as the record was "not otherwise available"; however, the Board did not attempt to explain how long it anticipated the system being inoperable nor did it specify the "earliest date" on which the recording would be available based on whatever information the agency possessed or could obtain. If providing an exact date was not feasible under the circumstances, the Board could have provided a good faith estimate of how long access would be delayed. In failing to either produce the recording within three business days per KRS 61.880(1), or properly invoke KRS 61.872(5) by citing that provision and providing a detailed explanation of the cause for delay and the date when the record would be available for inspection or copying, the Board violated the Act from a procedural standpoint. See 09-ORD-007.
KRS 61.880(1) also provides that a "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. " (Emphasis added). In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. In other words, a public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records, or portions thereof withheld per KRS 61.880(1) , in order to satisfy the burden of proof imposed upon public agencies per KRS 61.880(2)(c). 04-ORD-106, p. 6; see 03-ORD-045 (mere invocation of a statutory exception, without adequate explanation of how it applies to records being withheld, does not satisfy burden of proof imposed on the agency under KRS 61.880(2)(c) and 61.882).
As the Attorney General has consistently recognized:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974), we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2 (emphasis added).
Noticeably absent from the initial response of the Board is any reference to KRS 61.878(1)(j); equally lacking is the required explanation of how that statutory exception applied to the requested e-mails. Advising that "[o]nly emails that constitute a decision are considered public record, " and no decisions were made regarding the Bylaws, with no statutory reference or context is not sufficient under well-established law regarding application of KRS 61.880(1) . The Board partially remedied this error on appeal in citing KRS 61.878(1)(j); however, the Board merely quoted the language of that exception rather than providing any further explanation of how it applied to the e-mails withheld. Its assertion that "[s]tatute specificity is not required under KRS 61.880(1)," nor was Mr. Urban "required to cite the specific statute but only the specific exception, which he did," not only demonstrates a fundamental misconception of its procedural duties under that provision, but is also factually inaccurate given that Mr. Urban did not cite any exception.
Bearing in mind that public agencies like the Board have the burden of proof under KRS 61.880(2)(c) in denying requests, and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," the Attorney General must conclude that both responses lacked the requisite specificity and thus were both procedurally and substantively deficient. Edmondson v. Alig , above at 858; See 97-ORD-170. When responding to future requests, the agency should be guided by the longstanding principle that procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181. In so holding, this office is not suggesting that some, or possibly all of the responsive e-mails do not qualify for exclusion per KRS 61.878(1)(j), only that the Board has failed to satisfy its burden of proving as much per KRS 61.880(2)(c).
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See 99-ORD-220; 02-ORD-86; 07-ORD-156. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69. City of Louisville , above, the seminal case on this issue, and its progeny, including the subsequent line of opinions/ decisions by this office, are controlling on the facts presented. See 97-ORD-168, pp. 2-7; see also 07-ORD-158. Compare 01-ORD-47 and 01-ORD-83. Inasmuch as the Board has apparently not made any changes to its Bylaws, and thus no final action has resulted, it can properly withhold any existing responsive e-mails, assuming they can be properly characterized as recommendations, or memoranda in which opinions are expressed or policies formulated (the final action inquiry is otherwise moot), 4 as they retain their preliminary status unless and until adopted, in whole or in part, as the basis for the final action of the agency, whether implicitly or explicitly. See 08-ORD-098.
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:
Judy PonderJim P. UrbanJohn K. Carter
Footnotes
Footnotes
1 To clarify, the e-mails are, by definition, "public record[s]" within the meaning of KRS 61.870(2) insofar as they are "prepared, owned, used, in the possession of or retained by a public agency." The question is whether they are open records, or can be properly withheld under one or more of the exceptions to disclosure codified at KRS 61.878(1). See 05-ORD-072; 08-ORD-014.
2 This office has recognized that "ongoing, continuing, or standing requests for public records are not proper under the law and need not be honored." 02-ORD-036, p. 4; OAG 91-78. However, this line of authority is not controlling here as the requester did not seek access to a record prospectively, i.e., one that would otherwise be nonexistent or inaccessible until the future; rather, in denying access to a public and open record that would normally have been created, the agency relied exclusively upon the inability to access or produce a copy of the requested video recording due to equipment malfunction of some kind. See 08-ORD-080. The Board initially advised only that staff was unable to retrieve or copy the recording. "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; see 09-ORD-019. Inasmuch as the subject request cannot be properly characterized as prospective, and the underlying rationale of this line of authority therefore does not apply on these facts, the requester should not be required to submit a new request now that said equipment has apparently been repaired as that would further delay access unnecessarily.
3 See 02-ORD-132, p. 7, citing Zink, above, at 828.
4 Significantly, in 05-ORD-280 this office analyzed a series of then recent decisions involving access to intra/interagency e-mails, applying these authorities in contrasting the "conversational-type communications" at issue in 05-ORD-144, which were deemed to be "of a transitory nature, devoid of meaningful value to the agency" and consisting of "neither drafts, notes, or correspondence with private individuals, nor subjective expressions of opinion . . . [or] recommendation," with the emails at issue in 05-ORD-210 and 05-ORD-221. In the latter decisions, the Attorney General affirmed the denials of access only as to e-mails containing recommendations and opinions, concluding that such e-mails fell squarely within the parameters of KRS 61.878(1)(j) and were protected from disclosure unless adopted as the basis for any final action by the agency.