Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the responses of the Finance and Administration Cabinet to Mark Gray's requests for records relating to "the offer/bidding/ award of PR-4753" were, in some cases, procedurally deficient. Nevertheless, those responses, insofar as they ultimately established full disclosure of all responsive records in the Cabinet's custody and, over and above the Cabinet's statutory duties under the Open Records Act, an offer to meet with Mr. Gray and his attorney, Noel Mark Botts, to provide "instruction in understanding the meaning or import of information shown upon records produced," 1 were substantively correct.
On October 25, 2012, Mr. Gray requested access to "[a]ll documents used to complete the offer/bidding/ award of PR-4753." Relying on KRS 61.878(1)(i) and (j), the Cabinet denied that request on October 28, explaining that requested records were "preliminary." One month later Mr. Gray requested particular records relating to PR-4753 (PR-5297) including minutes or correspondence from the Bond Oversight and Review Committee, statutes authorizing challenged actions, and "certification of conformity." The following day, Mr. Gray requested additional records relating to PR-4753 (PR-5297) including all offers, best and final proposals, contact logs, and statutes authorizing other challenged actions. On December 6, the Cabinet responded that responsive records would be retrieved "within ten working days," giving "said request a new due date of December 14, 2012." The Cabinet indicated that once, "gathered and reviewed," the records would be "available to [Mr. Gray] along with the invoice, if applicable, for copies provided." Dissatisfied with the Cabinet's apparent failure to provide all of the requested records, Mr. Botts initiated this appeal on behalf of his client on December 21, 2012.
Following a protracted exchange of email and correspondence concerning this matter that included assurances from the Cabinet that "it has given Mr. Gray every document that he has requested to which [the Cabinet] possesses access," and two attempts on the part of this office to ascertain the specific records that remained in dispute, Mr. Botts continued to express concern about the adequacy of the Cabinet's response. On March 1, 2013, he posed a series of questions aimed at verifying which record was responsive to which request and an explanation for several of the Cabinet's responses. Shortly thereafter, the Cabinet's general counsel notified Mr. Botts and the Attorney General that he "would meet with [Mr. Botts] and the head of the leasing department of the Finance Cabinet to go over each document . . . ." Although procedurally deficient, the Cabinet's ultimate disposition of Mr. Gray's requests, along with its offer to meet with Mr. Botts to provide "instruction in understanding the meaning or import of information shown upon records produced," was substantively correct.
The Cabinet erred in denying Mr. Gray's October 25 request when it failed to provide "a brief explanation of how the exception[s] appl[y] to the record[s] withheld" per KRS 61.880(1). That statute obligates a public agency that receives an open records request and that denies, in whole or in part, inspection of any record requested, to "include a statement of the specific exception authorizing the withholding of the record" and to explain how that exception applies to the record withheld. Although the Cabinet cited KRS 61.878(1)(i) and (j), and paraphrased the language of those exceptions, it did not explain how, or to what, records identified in Mr. Gray's October 25 request were preliminary. Kentucky's courts have directed agencies "to provide particular and detailed information in response to a request for documents" and to avoid issuance of "a limited and perfunctory response."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The Cabinet's October 28 response to Mr. Gray's October 25 was largely perfunctory.
The Cabinet further erred in responding to Mr. Gray's November 28 and 29 requests when it failed to provide a detailed explanation of the cause for delay in producing records responsive to those requests. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Under the clear and simple terms of this statute, an agency response to an open records request that cannot be fulfilled in three business days must be accompanied by "a detailed explanation of the cause . . . for further delay" and a commitment to make the requested records available on the "earliest date." The Cabinet's response offered no explanation for the delay in production of responsive records. While we appreciate the demands the Cabinet, along with other public agencies, face in fulfilling open records requests, we cannot approve the practice of extending the disclosure date without the statutorily requisite "detailed explanation of the cause." To this extent, the Cabinet's response to Mr. Gray's November 28 and 29 requests was procedurally deficient.
Our review of the record on appeal does not support Mr. Botts' complaint that the Cabinet's responses were also substantively deficient. The Cabinet offered repeated assurances that all responsive records in its custody have been produced, and Mr. Gray failed to identify particular records that had not been produced. To allay any concerns he has in this regard, general counsel for the Cabinet offered to meet with him "and the head of the leasing department of the Finance Cabinet to go over each document." Absent some indication that particular records have been improperly withheld, this office cannot, in the context of an open records appeal, "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 (1989 WL 434336 (Ky. A.G.), p. 3). Nor can we compel an agency to provide "instruction in understanding . . . the meaning or import of information shown upon records produced." Id. The Cabinet has nevertheless agreed to meet with Mr. Botts to review the records it produced in response to his client's request in an attempt to resolve any remaining dispute "through patient consultation and cooperation . . . ." Id. The Open Records Act does not require more.
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:
Noel Mark BottsE. Jeffrey Mosley
Footnotes
Footnotes
1 OAG 89-81 (1989 WL 434336 (Ky. A.G.) p. 3).