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 City Clerk violated the Open Records Act in the disposition of Lawrence Trageser's December 5, 2013, request for records relating to certain city police officers. For the reasons stated below, we find that a procedural violation occurred.
Mr. Trageser's December 5 letter, in relevant part, requested "inspection and or [ sic ] copies of any and all personnel files of the following City of Taylorsville Police Officers; Toby Lewis, Kenneth Bledsoe, Kevin Mills, Damon Jewell and Thomas Schulz." On December 10, 2013, City Clerk Stephen A. Biven replied, in pertinent part:
In paragraph three you sought the inspection of the personnel files of police officers Toby Lewis, Kenneth Bledsoe, Kevin Mills, Damon Jewell and Thomas Schultz. Those documents are still being reviewed to redact information not allowed under the open records law. It will be available Friday, December 13, 2013 at 1:00 p.m.
Mr. Trageser initiated an appeal on December 12, 2013, alleging as follows:
The agencies [ sic ] response did NOT cite the specific KRS and subsection for denial of requested records. The agency did NOT state how the exception applies to the record withheld. The records are allowable for public viewing under the Open Records Act. The agency failed to notify petitioner within three days under the Open Records Act. None of the three methods of notification listed above [ i.e. , mail, telephone, and e-mail] were used to respond to Petitioner at any time.
(Emphasis in original.) We are unsure what to make of this last sweeping statement that the City never responded to Mr. Trageser "at any time," in light of the fact that Mr. Trageser attached a copy of Mr. Biven's December 10 letter to his appeal. The likely meaning is that as of December 12, Mr. Trageser had not yet been afforded inspection of the requested personnel files.
Mr. Biven submitted a response to this appeal on December 20, 2013, stating the following:
At this time I would cite KRS 61.878(1)(a) involving the personal nature of the request and the employees' rights. The city has the responsibility to determine if these records fall under that exemption KRS 61.878. ?
The delay, of [ sic ] which he refers to as a denial, is supported by KRS 61.872(5) which provides for an exception to the 3 day rule, due to those records not being "available for inspection" . This provision was absent from the letter drafted to Mr. Trageser and should have been so stated.
In response to the claim that the city failed to notify the petitioner within three days, the city's response was provided on December 10th. Given the two day weekend, this met the standards of a request presented on December 5th pursuant to KRS 61.880. Mr. Trageser traditionally picks up his material on or near the date required. We will start to mail the material to him from this point forward so as to be able to properly document that such records were sent to the petitioner in the required timeframe.
Mr. Biven does not specify in what manner, or on what date, Mr. Trageser was notified that the records were available, nor does he indicate when the records were in fact provided. Since the record is essentially silent on these questions and we have no firm basis to conclude otherwise, we presume that the City ultimately provided Mr. Trageser with the requested records on or about December 13, 2013. 1 The completeness of the records ultimately provided has not been raised in this appeal, but only the timeliness of the City in providing the records and whether any delay beyond the statutory three-day period was justified in writing and supported by law.
We find that a procedural violation of KRS 61.880(1) occurred when a decision regarding the final disposition of Mr. Trageser's request was not made within three (3) days exclusive of weekends and legal holidays. 2 The exception in KRS 61.872(5) does not apply:
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.
There is no indication here that the records were "in active use, in storage or not otherwise available." Furthermore, the only explanation given for the further delay was that the records had to be reviewed and redacted.
The need to redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not render the records "unavailable" and does not, in and of itself, constitute a reason for additional delay. 12-ORD-227; see also 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary"). We therefore find that the City of Taylorsville failed to comply with the three-day time period in KRS 61.880(1) for providing a substantive response to Mr. Trageser's request for the personnel files.
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.
# 485
Distributed to:
Mr. Lawrence TrageserJohn D. Dale, Jr., Esq.Mr. Stephen A. Biven
Footnotes
Footnotes