Opinion
Opinion By: Jack Conway, Attorney General; Jessica R. C. Malloy, Assistant Attorney General
Open Records Decision
Tom Stone appeals the Kentucky Office of Vocational Rehabilitation's failure to respond, in writing, and within three business days, to his May 15, 2014 request "to inspect every record with [his] name on it or that refers to [him] held or generated by Voc. Rehab. from 1-2009 until 5-15-2014." He also appeals the agency's failure to afford him a reasonable opportunity to inspect all responsive records.
First, he was unable to identify the records custodian as he could not locate the agency's rules and regulations which list this information as required under KRS 61.876. Accordingly, Mr. Stone hand-delivered his request to an agency employee. Mr. Stone contends that the employee only offered to allow him to inspect some of the records he requested, specifically "the standard caseworker file." The agency claims the employee's offer extended to all responsive records. Mr. Stone, thus, left the agency without inspecting the records and made an appointment to return on May 29, 2014. While the agency maintains that the purpose of the appointment was to fulfill its open records obligations, Mr. Stone maintains that the purpose of the meeting was to make "a decision on his action plan. " 1 At the May 29 meeting, Mr. Stone again declined the agency's offer to permit him to inspect records because he expected to discuss his action plan and had only a thirty minute appointment. One day later, the agency opted to mail Mr. Stone copies of "all records that referred to [him] and which were not excepted under the Open Records Law. . . ."
Among other provisions of law, KRS 61.872 and KRS 61.880 establish the duties of a public agency that receives a written open records request. KRS 61.880(1) requires the agency to issue a written response to the request within three business days. If the agency denies all or any part of the request, it must "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" . KRS 61.872(1), (2), and (3) require the agency to provide suitable facilities for inspection of public records during the agency's regular office hours. These provisions have been interpreted by the Attorney General to prohibit the agency from designating a specific date and time for inspection, unless agreeable to the requester, or from otherwise placing restrictions on "the hours of access to public records in the course of the business day." 06-ORD-158, pp. 3, 4 citing 98-ORD-69, p. 6.
To the extent Mr. Stone's and the agency's recollection of the facts can be reconciled, the record substantiates Mr. Stone's allegation that the agency failed to respond in writing and within three business days to his May 15 open records request. The record also establishes that the agency did not satisfy its obligation to honor Mr. Stone's request to inspect all responsive records before, or in lieu of, obtaining copies, because the agency withheld unidentified "excepted" records. See June 6, 2014 supplemental response. To the extent that he was not permitted access to all responsive records on May 15, the opportunity to inspect afforded him on that date was inadequate. And to the extent that he was restricted to a limited period of time for inspection on May 29, any opportunity to inspect afforded him on that date would have been inadequate. Finally, because he expressly designated a preference for conducting onsite inspection, it was a procedural violation for the agency to mail him copies of the records, even if they did so without charge. 11-ORD-029, p. 2 ( citing 97-ORD-12 for the rule that "the decision whether to conduct onsite inspections of records rests with [the requester] ."
Accordingly, the Kentucky Office of Vocational Rehabilitation violated KRS 61.880(1) by failing to issue a written response within three business days that identified the "excepted" records withheld, included a statement of the statutory exception for the withholding, and explained how the exception applies to those records. The agency also violated KRS 61.872(1), (2), and (3) to the extent it did not afford him an adequate opportunity to inspect all responsive records during regular business hours.
Either party is entitled to appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. The Attorney General should be notified of any circuit court action but should not be named as a party in that action or in any subsequent proceeding. KRS 61.880(3).
Distributed to:
Mr. Tom StoneMs. Dorothy JenkinsDr. David Beach, MRC, Ph.D.Mr. Patrick Shirley
Footnotes
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