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 Spencer County Sheriff's Office violated the Open Records Act in the disposition of Lawrence Trageser's January 5, 2015, request for the personnel files of Lt. Col. Jonathan Bentley and Sgt. Tony Mattingly. For the reasons stated below, we find that a procedural violation occurred.
Mr. Trageser's letter, which bore the date January 1, was actually hand-delivered on January 5, 2015. On that same day, clerk Sharon Thomas issued a letter stating as follows:
The records that you are requesting for Lt. Col. Jonathan Bentley and Sergeant Tony Mattingly (a former employee) are currently in use for Lt. Col. Bentley and in storage for Tony Mattingly. Also said records contain information of a personal nature pursuant to K.R.S. 61.787 [sic] and K.R.S. 15.400(3) Exception to Open Records Act. The production of these records will require additional time in order for them to be retrieved, review and redact [sic] any information that is of a personal nature.
The records will be ready for your review on January 15, 2015 at the Spencer County Sheriff's Office anytime during normal business hours 8:00 A.M. - 4:00 P.M.
Mr. Trageser initiated an appeal on January 11, 1015.
On January 15, 2015, Major Carl Reesor responded to the appeal on behalf of the Spencer County Sheriff's Office. He stated that Mr. Trageser had been notified by telephone on January 13 that the records were ready for his review, and that Mr. Trageser had reviewed and scanned the records on January 15, 2015.
Since there is no 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. The record, however, does not reflect what redactions may have been made, because the appeal was initiated before the files were provided for inspection. While there is authority that might support such redactions as the removal of Social Security and employee ID numbers on grounds of personal privacy ( see, e.g., 09-ORD-049, 14-ORD-036), we do not reach the issue because it does not appear to be in dispute. Cf . 04-ORD-108. The issue presented by the parties is the timeliness of the sheriff's office 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. The terms of the exception in KRS 61.872(5) were not complied with:
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.
(Emphasis added.) The mere statement that records were "in use" or "in storage" does not constitute a "detailed explanation of the cause? for further delay." If merely reciting these phrases were sufficient, the statute's requirement of a "detailed explanation" would be meaningless. "Under the rules of statutory construction, no part should be construed as meaningless or ineffectual."
Lexington-Fayette Urban County Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009).
The only further explanation given for the 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, 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 Spencer County Sheriff's Office 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.