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 Louisville-Jefferson County Metro Government Department of Codes and Regulations violated the Open Records Act in its disposition of Paul Holliger's April 3, 2014, request for copies of records relating to an electrical inspection. For the reasons that follow, we find no violation of the Act by the Department.
In his April 3 request, Mr. Holliger asked for the following:
1. Records pertaining to the ELECTRICAL INSPECTIONS performed at the newly constructed and now open DOLLAR GENERAL store located at 7425 3rd St. Rd., Louisville, Ky. 40214.
2. Records pertaining to CHECKLIST/ PUNCH LIST (or whatever your agency uses that the electrical inspector actually used) to determine compliance with all applicable codes and regulations performed at the newly constructed and now open DOLLAR GENERAL store located at 7425 3rd St. Rd., Louisville, Ky. 40214.
3. Records pertaining to the most recent determination of the qualifications and IPL agency review (evaluations) of the competency of the ELECTRICAL INSPECTOR (S) who performed those inspection at the newly constructed and now open DOLLAR GENERAL store located at 7425 3rd St. Rd., Louisville, Ky. 40214.
4. Records pertaining to any certificate and/or permit issued that signifies that the site at the newly constructed and now open DOLLAR GENERAL store located at 7425 3rd St. Rd., Louisville, Ky. 40214 had PASSED all inspections and meets ALL applicable codes and regulations.
5. Records that signify that the structure and site at the newly constructed and now open DOLLAR GENERAL store located at 7425 3rd St. Rd., Louisville, Ky. 40214 is safe for use by the general public (CoO?)
(Emphasis in original.) On April 7, 2014, Public Information Specialist Jessica Wethington replied: "The Department of Codes and Regulations is conducting a search for records meeting your request, due to the high volume, they will be available to you no later than Friday, April 11." On April 11, Ms. Wethington again contacted Mr. Holliger and stated: "Due to the volume of requests and our effort to provide accurate information, we will require additional time to process your request. We will make every effort to provide you with records by Wednesday, April 16 or earlier."
Finally, on April 22, 2014, Ms. Wethington responded to Mr. Holliger:
The Department of Codes and Regulations believes it has identified records meeting your request and copies are attached. By providing copies of all responsive records identified meeting your request description, we will consider this request to be complete.
We do not hold individual continuing education records for inspectors. They are held at the state level.
Attached were 23 pages of records. Later that same day, after a complaint from Mr. Holliger, Ms. Wethington provided him seven pages of additional documents with the following more detailed explanation:
Upon further review, the Department of Codes and Regulations has identified additional records pertaining to your request. We greatly apologize for any inadvertent oversight that may have occurred. We are including records that were provided before and adding the Building Application Information document. We now believe this request is complete.
1 - [responding to item 1 of the request] Records pertaining to the electrical inspections are included on the Building Application Information sheet.
2 - [responding to item 2] The Department of Codes and Regulations does not use a checklist/ punchlist or any other document. We cannot provide documents that do not exist.
3 - [responding to item 3] The Department of Codes and Regulations does not hold individual records of continuing education. These records are held at the State level. You may submit a request by following this link: http://ppc.ky.gov/Pages/Openrecords.aspx
Attached is a document identifying the licensing of electrical contractors, electricians, and master electricians pursuant to KRS 227A.060 and the job descriptions for Electrical Inspector I and II. Mr. Weitnjes['] Certified Electrical Inspector card is included in this request as well.
4 -- [responding to item 4] Permits for the property located at 7425 3rd St Rd are attached. Included on the permit is the inspection history.
5 -- [responding to item 5] The Department of Codes and Regulations does not hold records pertaining to this request.
Mr. Holliger appealed to the Attorney General on May 16, 2014, complaining of the delay and alleging that additional records had been withheld.
On June 5, 2014, Assistant Jefferson County Attorney Brianda A. Rojas responded to Mr. Holliger's appeal. She stated that two additional documents had been "identified as responsive to his request" during the pendency of the appeal, the Certificate of Occupancy dated April 24, 2014, and "the complete Building Application Information for the subject property," which was released subject to "the redaction of a private mobile telephone number in compliance with KRS 61.878(1)(a)." Both documents were provided to Mr. Holliger. Therefore, it is once again the Department's position that all responsive records have now been provided, with the sole redaction of the private telephone number.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. 1 Though this is admittedly the third time the agency has stated that the results of its search were complete, we have no concrete indication that any further responsive records exist.
In regard to the private telephone number, KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
In
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (2013), the Supreme Court of Kentucky found that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, ? the adverse repercussions of public disclosure need not be severe." Id. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. In Kentucky New Era, the newspaper was seeking address, telephone, Social Security numbers, and other identifying information on crime victims, witnesses, and uncharged suspects, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. While the Court found this interest legitimate, it did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87. Therefore, the identifying information was properly withheld.
We find nothing to distinguish this case from the result in the Kentucky New Era case. The telephone number of a private individual has no manifest bearing on how the Department performed its public duties, and therefore this identifying information was properly subjected to categorical redaction under KRS 61.878(1)(a). We therefore find no substantive violation of the Open Records Act.
We do, however, find a procedural violation of the Act in that the agency's substantive response was not made until 19 days after it acknowledged receipt of Mr. Holliger's request. KRS 61.880(1) requires the agency to give notice of the disposition "within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request." KRS 61.872(5) requires any delay beyond that to be accompanied by "a detailed explanation of the cause ? for further delay and the place, time, and earliest date on which the public record will be available for inspection. " The Department's only explanation for the delay, as set forth in the June 5 response to the appeal, is:
[Mr. Holliger's] request required a search through voluminous documents thus, explaining need for the extension as required by KRS 61.872(5). On April 11, 2014, the Department requested additional time due to the volume of requests received requiring prompt attention in conjunction with the normal day-to-day operations and duties of Ms. Wethington as the Public Information Specialist.
Under KRS 61.872(5), the only permissible grounds for delay beyond three business days are "[i]f the public record is in active use, in storage or not otherwise available." It does not meet this standard to state that the agency had to "search through voluminous documents" or that the records custodian was busy. Cf. 95-ORD-27 (merely stating that the request asks for a "large amount of information" is not a sufficiently "detailed explanation" under KRS 61.872(5)). We therefore find a procedural violation of KRS 61.880(1) resulting from the delay in providing the records beyond three business days.
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 proceedings.
Distributed to:
Mr. Paul R. Holliger, Sr.Brianda A. Rojas, Esq.Ms. Jessica Wethington
Footnotes
Footnotes
1 See also Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record).