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 Morgantown violated the Kentucky Open Records Act in the disposition of the December 13, 2013, request made by Editor C. Josh Givens, The Banner-Republican , for "copies and/or review of any and all documents, notes, digital files related to bid proposals of all companies which submitted documents in response to the City's recent bid advertisement seeking development of a City Web site[,]" including "notes made in researching such a need, any notes from meetings with bidding companies, as well as any technical documents, mock-up images of such a proposed site, along with payment and fee schedules related to such bid proposals." In a timely written response, Mayor Linda Keown advised that she had "managed to look through some areas for information concerning your request; however, due to the season, I did not find the time to look through folders, minutes, etc. Anita [City Clerk-Treasurer] and Jarrod have been busy gathering audit information and other end-of-the-year business that has to be done." Also, Mayor Keown observed, "employees have had doctor appointments and vacation days, myself included, to catch up on at the end of the year." Mayor Keown also cited the need to spend time during the evenings with her ill "mother in the nursing home" in explaining that she would provide the records by January 8, 2014.
Mr. Givens initiated this appeal by letter dated December 20, 2013, acknowledging that the City's response "is not an outright denial" of his request; however, "the 'reasons' given for the delay until early 2014 are not in line with the ORA," he correctly asserted, nor do the reasons fall within any of the statutory exceptions codified at KRS 61.878(1). Upon receiving notification of Mr. Given's appeal from this office, Mayor Keown supplemented her written response on behalf of the City, asserting that she gave Mr. Givens "sufficient notice as to when I would get the records delivered to him." She attached calendars from the months of December 2013 and January 2014 to demonstrate "how busy these months have been." Mayor Keown also noted that she only has "two office staff, Jerrod and Anita," and essentially reiterated all of the reasons originally provided in attempting to justify the delay in complying with Mr. Givens' request, emphasizing that she has not had "a lot of time to get this request compiled along with my regular duties as mayor." Morgantown City Councilman Terrell House confirmed in a separate letter dated January 7, 2014, that Mr. Givens would receive all existing responsive documents "tomorrow, January 8, 2014 as was included in his notice." Based upon the following, this office finds the agency's response deficient.
As a public agency, the City of Morgantown 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 agency responses 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.
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 . . . .
01-ORD-140, pp. 3-4 (original emphasis); 06-ORD-147; 07-ORD-179; 10-ORD-201.
In her December 18 response the Mayor notified Mr. Givens of when he could access the documents requested. Mr. Givens ultimately received the records on January 8, the date specified; however, the City is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests made under the Open Records Act. Notwithstanding the challenges impeding the ability of the City to comply in this instance, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 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"). 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; 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff" ).
While a reasonable extension of time may have been justified on the facts presented, 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. 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. 2. "The 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 Open Records 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., 834 S.W.2d 681, 682 (Ky. 1992), and the recognition that "the value of information is partly a function of time." Fiduccia, supra, at 1041. Thus, in the absence of a legitimate detailed explanation by the City of the cause for delaying access until January 8, 2012, the Attorney General must conclude that Mr. Givens did not receive "timely access" to the records eventually provided. Noticeably absent from both of the responses by the agency is any reference to KRS 61.872(5); also lacking is a detailed explanation of which permissible reason(s) 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 Mr. Givens' 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:
C. Josh GivensLinda KeownAnita GossettJohn King