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 Taylorsville subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), in failing to provide Evelyn McKemie with timely access to nonexempt public records that she requested on April 24, 2013. More specifically, Ms. McKemie requested a copy of the audio recording, the agenda, and the minutes of the October 11, 2011, special meeting of the City Commission, the February 7, 2012, regular meeting, and the May 1, 2012, regular meeting. By separate request of the same date, Ms. McKemie asked for a copy of the "Meeting Procedures Policy passed on 4-8-10," and the audio recording, agenda, and minutes of the special meetings held on March 25, 2010 (and the "Commissioners' Packet"), April 28, 2010, May 12, 2010, and August 26, 2010, as well as the audio recording, agenda, and minutes of the August 3, 2010, regular meeting. In a timely but otherwise deficient written response, City Clerk/Supervisor Stephen A. Biven advised Ms. McKemie that he was attaching the requested policy and the "numerous audios, agendas and minutes listed . . . are still being gathered." 1
Upon receiving notification of Ms. McKemie's appeal from this office, the City advised that Ms. McKemie subsequently received all of the requested agendas and minutes. Mr. Biven attached copies of his two separate May 19 supplemental responses 2 confirming disclosure of those records, but advising that "audio tapes from those meetings that you wanted copies of are still being processed, as is the Commissioner's Packet from the 3-25-10 meeting." The City "hope[d] to have" the requested audio recordings, eight in total, "completed and presented" to Ms. McKemie "within the next 30 days" or "by the end of the Fiscal Year if at all possible (6-30-13). " Mr. Biven advised Ms. McKemie that "we are trying to complete your requests as quickly as time will allow." In addition to his two May 19 responses, on appeal Mr. Biven outlined in great detail the specific "technical difficulties that delayed matters," enclosing a series of e-mails between Co-Treasurer Lisa Ware and himself documenting the steps taken by the City to address these difficulties. On or around June 7, 2013, Ms. McKemie verbally confirmed that she was ultimately provided with all of the requested audio recordings; accordingly, our analysis will focus exclusively on whether the City fully discharged its procedural obligations under the Open Records Act in the disposition of Ms. McKemie's April 24 requests. In accordance with prior decisions applying KRS 61.880(1) and 61.872(5), as well as 61.880(4), this office finds that a delay of approximately seventeen (17) business days (April 24 until May 19) to produce agendas and minutes from eight meetings, and the "Commissioner's Packet," subverted the intent of the Act within the meaning of KRS 61.880(4). The City was permitted to require inspection of the requested audio recordings (and the other public records) prior to providing copies per KRS 61.872(3), or in the alternative, "permit the applicant to duplicate the records" per KRS 61.874(1), and exceeded its duty in eventually reproducing the recordings. However, in failing to advise Ms. McKemie, in a timely written response, of either option, the agency subverted the intent of the Act by delaying access entirely from April 24 until June without providing a detailed explanation of the cause until Ms. McKemie contacted Mr. Biven by telephone on May 15 (documented in the May 16 e-mail of record).
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 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)(copy enclosed). See, e.g., 01-ORD-140; 04-ORD-138; 05-ORD-134; 06-ORD-180; 08-ORD-250; 09-ORD-007. The City issued a timely written response to Ms. McKemie's April 24 requests on April 27 per KRS 61.880(1); however, it only provided the requested policy on that date. In the absence of a legitimate detailed explanation of the cause for otherwise delaying access to nonexempt public records, the Attorney General must conclude that Ms. McKemie did not receive "timely access" to responsive public records eventually provided.
The Attorney General has long emphasized that "[n]othing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)," neither of which the City invoked here. 93-ORD-134, p. 3. More recently, this office reiterated that any extension of this deadline for disclosure "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). If none of the conditions are satisfied, as in this case, a public agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 02-ORD-165, p. 3, citing 93-ORD-134; 01-ORD-140; 10-ORD-081.
Noticeably absent from the City's April 27 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 as did its May 19 response as to the "Commissioners' Packet" not provided. "The procedural requirements of the Open Records Act, " the Attorney General has long observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request. " See, e.g., 10-ORD-057 and authorities cited therein. Further, "[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.
Neither of the responses by the agency suggested that agendas or minutes 3 of the specified meetings could not be immediately produced because they were "in active use, in storage, or not otherwise available" per KRS 61.872(5). Further, 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)); 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 (agency'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)); see also 10-ORD-201. For these reasons, the City subverted the intent of the Act within the meaning of KRS 61.880(4) in failing to afford Ms. McKemie timely access to readily available public records (meeting agendas and minutes) described in her two April 24 requests. 4 See 09-ORD-139.
That said, the City was permitted to require Ms. McKemie to inspect (listen) to any existing responsive audio recordings prior to providing her with copies even assuming that no technical difficulties occurred. KRS 61.872 governs access to public records. More specifically, KRS 61.872(3) provides:
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. (Emphasis added.)
As the Attorney General has often recognized, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5. See 12-ORD-104 (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," but agency "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" and thus violated the Act in failing to either produce the recording in three business days per KRS 61.880(1) or comply with KRS 61.872(5)).
Because Ms. McKemie apparently resides in Spencer County, and the records in question are located in Spencer County as well, she was unable to satisfy the threshold requirement of KRS 61.872(3)(b); accordingly, the City was authorized to require her to listen to any responsive audio recordings prior to furnishing copies. See 08-ORD-132. The City did not choose to invoke this provision. 5 However, in responding to Ms. McKemie's appeal, for the first time (of record), the City, through its legal counsel, noted that "the tapes in question have always been available for Ms. McKemie to inspect, i.e. , listen to the tapes, make notes and/or bring a recording device and record the tapes herself." KRS 61.872(1) provides that "[i]f the applicant desires copies of public records other than written records, the custodian of records shall duplicate the records or permit the applicant to duplicate the records ." (Emphasis added. ) Thus, had the City advised Ms. McKemie of this alternative in a timely written response it would have discharged its duty under the Open Records Act. See 97-ORD-16 (Henderson City-County Planning Commission acted consistently with provisions of the Act in requiring the requester to inspect requested plats before providing copies and in affording him the opportunity to duplicate the plats himself); 10-ORD-126.
The City documented in great detail the good faith efforts undertaken to reproduce the requested audio recordings on appeal; however, it appears from the record that none of the technical difficulties associated with reproduction of the recordings were communicated to Ms. McKemie until she contacted Mr. Biven on May 15. While this office does not otherwise find any error on the part of the City relative to said recordings, the City erred in failing to advise Ms. McKemie in a timely written response of the reason it was unable to copy the recordings and provide her with an opportunity to inspect (listen) and "duplicate the records" herself per KRS 61.874(1) if she did not wish to wait until the City had the capability of reproducing the recordings.
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:
Evelyn McKemieStephen A. BivenJohn D. Dale, Jr.
Footnotes
Footnotes
1 Ms. McKemie also submitted a third request for a "copy of paper handed off by Police Chief to Mayor during Special Mtg. on 4-23-13," which Mr. Biven advised "is not covered under the [O]pen [R]ecords [A]ct." Because Ms. McKemie did not include a copy of this request with her May 20, 2013, appeal per KRS 61.880(2)(a), this office is precluded from rendering a decision as to said record. However, in the interest of efficiency, and given the City's apparent misconception of its procedural duties, the Attorney General is compelled to note that insofar as the City failed to cite a statutory exception or provide any explanation of how the purportedly applicable exception applied, its response lacked the specificity that KRS 61.880(1) and 61.880(2)(c) require. 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; 12-ORD-211. As indicated, this office makes no finding as to whether the record was properly withheld as that issue is not currently before us.
2 In response to a May 16, 2013, e-mail that Ms. McKemie entitled "Recap of our 9:35 a.m. phone call on Wednesday, May 15, 2013," Mr. Biven advised that because most of the time spent "gathering material in response to your Open Records Request occurs at nights and on weekends, I will try to have a status report prepared for you on Monday informing you of the progress made and when it is anticipated that your request will be completed in its entirety."
3 In relevant part, KRS 61.835 provides that minutes of public agencies must be "open for inspection at reasonable times no later than immediately following the next meeting of the body." Records Series L4938 of the Local Agency Records Retention Schedule , entitled "Official Minutes," in relevant part, mirrors KRS 61.835. In sum, official minutes are permanent records that must be retained and be publicly available. Pursuant to Records Series L4966, "Itineraries/Schedules of Meetings," is "used to document the time and place of meetings and the agendas for those meetings." Those records have a one-year period of retention with Disposition Instructions to destroy following that period of time. If the City was acting in compliance with relevant provisions of the applicable records retention schedule, it would not have possessed some of the agendas requested. In any event, both kinds of records, if properly maintained, should be readily available.
4 In his May 28 appeal response, Mr. Biven advised that Ms. McKemie submitted another written request on May 3, and since this information "was more readily available," he complied with said request before "continuing to put forth effort toward the remaining two requests" from April 24. He requested some "direction from" this office "as to whether that decision was the right one to make" and noted that he would like to share with his "fellow city clerks any information" this office can provide "to help clarify this matter." However, "[t]he Attorney General has consistently rejected agency entreaties that he opine on the release of records that are the subject of a pending open records request." 09-ORD-002, p. 4, n. 2. See 96-ORD-114 (holding that "[i]n view of its quasi-judicial function in the resolution of disputes under the Open Records Act, the Attorney General's Office cannot advise a public agency how to handle a particular request for access to public documents"); 01-OMD-053; 03-OMD-058. Accordingly, this office must respectfully decline to comment regarding the requests that are currently pending.
5 On appeal, City Attorney John D. Dale, Jr., in a separate response from that provided by Mr. Biven, advised that in his "opinion, when provided by the City or by an individual, tapes are not an official record, such as Ordinances and minutes, since no final action is taken by the City, but they are tantamount to inter-office memo[randa] or working notes to assist in the preparation of the minutes, which of course becomes an official record once they become final." In the interest of absolute clarity, this office is compelled to clarify that Mr. Dale's position is contrary to existing legal authority. The Attorney General recently observed:
When viewed in conjunction with OAG 92-111 and its progeny, 01-ORD-87 establishes that a recording of a public agency meeting, subject to qualifications outlined above, is a "public record" within the meaning of KRS 61.870(2), rather than a preliminary document, and that no statutory basis exists for denying access to all or any part of the minutes, or any record(ing) made at the direction of the public agency, of its open, public meeting.
12-ORD-104, p. 8. This holding is limited "to those instances when the agency directs that a tape is made of its public meeting, for whatever purpose, and that tape is purchased with agency funds." OAG 92-111, pp. 3-4; 06-ORD-195.