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 November 20, 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 20 letter, in relevant part, requested "any and all records reflecting City of Taylorsville Police Officer Daniel Wills [ sic ] personal [ sic ] file. ? Petitioner is requesting an inspection of all above documents before purchasing." On November 25, 2013, City Clerk Stephen A. Biven replied, in pertinent part:
Your request has been forwarded to our city attorney to determine whether or not any part of your request falls under the exemptions as listed in KRS 61.878(1) to discern if any such information should be deleted and redacted. I anticipate a response by 4:00 p.m., November 27th.
Mr. Trageser initiated an appeal on December 8, 2013, 1 alleging as follows:
Petitioner asserts that he was NOT notified of the denial within the three day time limitation. Although, the agencies [ sic ] response was created within the three day limit set forth under the open records Act, the agency did NOT notify Petitioner of their findings and or intent?
? Agency representatives failed to [c]ite specific statu [t]e and subsection applicable to denying the open records request past the three day time limit and how the statu [t]e specifically applies to this request. The issue of what if any information should or should NOT be deleted or redacted is of NO concern to the Petitioner. The law allows for agencies to process open record requests within the three days and allow viewing or cop[y]ing.
(Emphasis in original.) On February 20, 2014, City Attorney John D. Dale, Jr., responded to the appeal, stating in relevant part:
[T]he City did provide the information sought regarding the personnel file of officer Wills by letter dated November 26, 2013, a copy of which is enclosed, stating: "Attached please find the information requested."
Although, the City in its initial response, advised Mr. Trageser why the personnel file was not immediately available for inspection, in retrospect, perhaps the City should have specially cited KRS 61.872(5) and stated that the file was "not otherwise available" within the 3 day period because it had to be reviewed to determine if there was information which needed to be redacted in accordance with any of the provisions in KRS 61.878.
Since there is no clear indication that the requested records were provided in unredacted form, we do not find the appeal moot by reason of Mr. Trageser's having received the records. We assume that similar redactions to those made by the City in 14-ORD-036 would have been made to these records; i.e., the removal of Social Security and employee ID numbers. While there is authority that may support such redactions ( see, e.g., 09-ORD-049), we do not reach the issue because it does not appear to be in dispute. Cf. 04-ORD-108. The completeness of the records ultimately provided has not been challenged 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 from receipt of the request, 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. 14-ORD-047; 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 file.
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
Footnotes
Footnotes
1 Due to a clerical error, Mr. Trageser's December 8 letter to the Attorney General was initially filed as part of the record in a previous appeal by Mr. Trageser which had arisen from the same November 20 request. It was correctly logged as a separate appeal on February 11, 2014.
2 We infer from Mr. Dale's invocation of KRS 61.872(5) that November 26, 2013, was one day outside the limit of three business days.