Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, 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, by failing to afford Evelyn McKemie timely access to the "legal and audit invoices for water and non-water from 7-1-2011 through 6-30-2012" she requested on December 6, 2012. Because the issues presented in this appeal closely mirror the issues presented in 13-ORD-098, we adopt the reasoning of that open records decision and reach the same conclusion. 1 The city subverted the intent of the Open Records Act by postponing access to the requested invoices until after Ms. McKemie initiated the appeal, exacerbating that error by failing to provide her with a detailed explanation of the cause for delay, per KRS 61.872(5), and meeting its commitment to produce the invoices by December 21, 2012. 2
In a response dated December 11, 2012, the city clerk advised Ms. McKemie that her "request for all invoices involving legal and audit services from 7/1/11 thru 6/30/12 will take considerable time to retrieve" because it "involves a large number of documents." The clerk indicated that the "goal is to provide them prior to staff holidays beginning next Friday, December 21st at 4:30," and that Ms. McKemie would be "notified when that request has been completed." The record on appeal contains no proof that the city did either of these things.
In supplemental correspondence directed to this office after Ms. McKemie filed her appeal, the clerk explained that "the General Ledger Account printouts were provided for both of these accounts" in response to requests filed by Ms. McKemie in May 2012. He maintained that the city was "unaware that a copy of the actual invoices was desired," attributing the city's misunderstanding to "Ms. McKemie's numerous and unrelenting requests." By letter dated December 18, 2013, Ms. McKemie denied any misunderstanding or miscommunication, referencing her repeated open records requests for legal and audit invoices and the city's inaction. Denying that the city made any attempt to compile the invoices, and notify her of their availability prior to her decision to file the November 6, 2013, appeal now before us, she indicated that she had not received notification that the actual invoices had been copied and were available as of January 10, 2014, when she wrote this office to assert her continuing desire to obtain them. In a letter dated February 5, 2014, Ms. McKemie acknowledged receipt of the invoices she requested on December 6, 2012.
We appreciate the broad scope of Ms. McKemie's numerous multi-part open records requests, and the attendant demands on the city, in the period under scrutiny, but reject the city's characterization of her requests as ambiguous. Ms. McKemie clearly and unambiguously requested:
Legal and audit invoices water from 7-1-11 through 4-30-12[;]
Legal and audit invoices water from 5-1 through 6-30-12[; and]
Legal and audit invoices nonwater 7-1-11 to 6-30-12.
While the city may have been satisfied that the "value of those invoices . . . [was] indicated in the general ledger provided," Ms. McKemie was not. And although she was under no legal obligation to do so, she made her dissatisfaction clear by submitting subsequent requests that included identical requests for "invoices. "
Moreover, the record on appeal does not support the city's position that when "notified that this miscommunication occurred last year, the city quickly provided the invoices. " The city asserts that the invoices were reproduced and available for Ms. McKemie on or before December 20, 2013, but offers no proof to support this claim. 3 Ms. McKemie emphasizes that, as of January 10, 2014, she had not been notified of their availability, averring that she obtained them sometime after that date but before February 5, 2014. Applying the analysis in 13-ORD-098, we find that this nearly two month delay, with or without the one and one-half year delay that preceded it, was inordinate.
In 13-ORD-098, this office thoroughly analyzed the City of Taylorsville's obligations in responding to other requests submitted by Ms. McKemie. Beginning at page 3 of that decision, the Attorney General addressed the city's duty under KRS 61.872(5) when it was unable to produce voluminous records in response to her open records requests within three business days. We determined that the city's failure to provide a detailed explanation of the cause for delay, to identify a date certain on which the records would be available, and to produce the requested records on that date, violated KRS 61.872(5) and subverted the intent of the Open Records Act per KRS 61.880(4). We reach the same conclusion in the appeal before us.
The city's December 11, 2012, response to Ms. McKemie's request for, inter alia , "legal and audit invoices for water and non-water from 7-1-2011 through 6-30-2012" references "a large number of documents," suggests that it "will take considerable time to retrieve, " and identifies its "goal . . to provide them prior to staff holidays beginning . . . December 21st at 4:30." This is not the detailed explanation, or the statement of the earliest date on which the records will be available, that is contemplated by KRS 61.872(5), especially since December 21 came and went without satisfaction of the request. Nor did the city "quickly provide" Ms. McKemie with the actual invoices after she initiated this appeal. Nearly two months elapsed before the invoices were released to her. Thus, we conclude that the City of Taylorsville failed to discharge its obligations under KRS 61.872(5) and ignored its duty to afford Ms. McKemie timely access to the invoices that were clearly and unambiguously identified in her December 6, 2012, request.
In contrast to advisory opinions issued under authority of KRS 15.020, open records decisions issued under authority of KRS 61.880(2)(a) have "the force and effect of law." Our records do not indicate that 13-ORD-098 was appealed to circuit court. Therefore, that decision is not merely advisory but is, instead, legally binding on the parties. 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. 4 Like all unappealed open records (and open meetings) decisions, if not appealed it, too, will have the force and effect of law.
# 449
Distributed to:
Evelyn A. McKemieStephen A. BivenJohn Dudley Dale, Jr.
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