Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Taylorsville Police Department and the Taylorsville City Clerk violated the Open Records Act in the disposition of Lawrence Trageser's November 6, 2013, request for records relating to a city police officer. For the reasons stated below, we find that a procedural violation occurred.
Mr. Trageser's November 6 letter requested "any record or document reflecting the personnel file of City of Taylorsville Police Officer Todd Walls. This would include any disciplinary action, warnings or complaints. Petitioner is also seeking any document reflecting previous agencies and or departments, that Walls has worked in before coming to the City of Taylorsville Police Department." On November 11, 2013, City Clerk Stephen A. Biven replied:
Your request has been forwarded to our city attorney to determine whether or not your request falls under the exemptions as listed in KRS 61.878(1). The attorney advises that he will attempt to have a reply by 4:00 p.m., November 15th.
At this point, the record becomes confusing. In a November 25, 2013, reply to Mr. Trageser's appeal initiated on November 13, 2013, City Attorney John D. Dale, Jr., asserts that the following occurred:
Since this involved a legal question, I was made aware of the request on Thursday, November 7, 2013. Due to my schedule on the 7th and, that I was leaving for the weekend on the 8th, and Monday the 11th was a legal holiday and, not being sure when during that following 4 day week I could review the law and the file, a reply dated November the 11th, which actually was not due until the next day, was sent out informing the requesting party the information should be ready by that Friday, November 15, 2013.
As it turned out, I was able to review the statute and the AGOs' [ sic ] opinion sooner than I thought I might, but wanted to check with Amye L. Bensenhaver, who I was able to contact Tuesday morning November the 12th (Monday the 11th was a legal holiday) , to confirm what information should be excluded.
The file was then reviewed and Mr. Trageser was notified it was available for inspection that day.
In retrospect, the reply probably should have stated why the file was not immediately available for inspection, although, since Mr. Trageser was notified on the 12th the file was ready for review, which was within the three (3) day statutory period, the November 11th reply should be a non-issue.
Mr. Dale does not specify in what manner Mr. Trageser was notified on November 12 that the records were available, nor does he provide a copy of any letter bearing that date.
Mr. Trageser, however, in a reply letter dated December 1, 2013, does include a copy of a letter from the City Clerk dated November 12, 2013, which states:
I am writing in response to your open records request of November 6, 2013. Attached please find the information requested.
Despite himself providing the Attorney General a copy of this letter, Mr. Trageser nonetheless asserts that "although the City of Taylorsville Clerk Steve Biven MAY have written a response on November 12, 2013, the response was NOT sent to Petitioner, period! ? Petitioner had NO reason [ sic ] or reasonable expectation; that the documents would be ready any sooner than as advised in the city response dated November 11, 2013, IF AT ALL!" (Emphasis in original.) He attaches a receipt from the "City of Taylorsville Water Department" [ sic ] for $ 4.90 dated November 18, 2013, purportedly showing that he paid for the records on that date.
Since we have no firm basis to conclude otherwise, we presume that the City did in fact send Mr. Trageser the requested records on November 12, 2013, which complied with the requirement of KRS 61.880(1) that the public agency issue its response within three (3) days exclusive of weekends and legal holidays. 1 We are aware, however, that the City made certain redactions to the records, which operated as a partial denial of the request. 2 Pursuant to KRS 61.880(1), "[a]n 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." (Emphasis added.) The city's failure to specify an exception or explain its application in the November 12 letter, with regard to the redactions made, constituted a procedural violation of KRS 61.880(1).
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:
Mr. Lawrence TrageserJohn D. Dale, Jr., Esq.Mr. Stephen A. Biven
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