Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Larry Green, Assistant City Administrator, City of Bardstown, initiated this appeal challenging the disposition by the Joint City-County Planning Commission (Commission) of Nelson County of his January 20, 2015 request for hard copies of the "most recent sign application and related documentation for every business location in the City of Bardstown." 1 In a timely written response, legal counsel for the Commission acknowledged Mr. Green's entitlement to said records; however, counsel advised that "[b]ecause of the size of the Planning Commission staff and its ongoing duties, it would be extremely difficult in the short term to fully comply with your request. They can identify and make the records available. Prompt copying is the problem." For this reason, counsel suggested that the Commission identify the records and that a staff member from the City be assigned to do the actual copying. Proceeding in this manner, he observed, would enable Mr. Green to promptly obtain copies.
The Commission agreed to "provide an area in the office for those records to be inspected by your representative." Counsel further explained that the Commission "uses its copier on a regular basis for matters related to its work. In the event the City representative proposes to work on a regular schedule for purposes of obtaining the records as quickly as possible, it would be difficult to use the Planning Commission's copier. " Accordingly, counsel advised Mr. Green that adequate space was available in which to place a second copier if he so desired. Counsel also noted that staff would "generally be available to your representative" during regular office hours.
Upon receiving notification of Mr. Green's appeal from this office, counsel and Chairman Todd A. Johnson issued a joint response on behalf of the Commission dated February 10, 2015. They reiterated that because of "the size of staff and ongoing duties it was difficult in the short term to fully review the 918 records in question and make copies immediately." For this reason, the Commission suggested that "space would be provided for the City to bring a copier and after the records were identified and pulled by the Commission staff, a representative from the City could make the actual copies." Because the Commission did not receive any response to its proposed resolution of the matter by January 29, 2015, the Commission began the process of making copies with the assistance of a newly hired part-time employee.
As a public agency, the Commission is required to comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access with limited exceptions not applicable in this case. Specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. In relevant part, KRS 61.880(1) provides that "[e]ach public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
In applying this provision and KRS 61.872(5), the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). . . . [T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein.
01-ORD-140, pp. 3-4 (citation omitted).
Although the Commission responded to Mr. Green's request dated January 20, 2015, by letter dated January 22, 2015, which is timely under KRS 61.880(1), and its response did not deny access, the Commission advised that "prompt copying" was problematic due to its limited staff and "ongoing duties," neither of which is a permissible reason for delaying access under KRS 61.872(5). See 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. "); 07-ORD-158 (Finance and Administration Cabinet's response that it was "in the process of filling" the request and expected to fill it "within the next two weeks" did not comply with KRS 61.872(5)); 08-ORD-006 (part-time status of the clerk did not justify delaying access to precisely described records in the possession of the agency). In general, a public agency cannot postpone or delay this mandatory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one." 02-ORD-165, p. 3. Nevertheless, the only exception to KRS 61.880(1) is found at KRS 61.872(5), which the Commission did not invoke. 02-ORD-165, p. 3.
Unless the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days and to afford the requester timely access to responsive public records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must "immediately so notify" the requester and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "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. " KRS 61.872(5); 02-ORD-165; 08-ORD-183. However, when a request is made for voluminous records covering an extensive period of time, "such time limitations are virtually impossible to meet." 93-ORD-134, p. 12. In short, Mr. Green's request for the "most recent sign application and related documentation" cannot properly be characterized as too voluminous or extensive based on the limited information provided regarding the content of the records. Further, the Commission did not contend as much, relying instead upon its limited staff and ongoing duties to justify the delay in producing copies.
The Commission did not identify the number of responsive documents until after this appeal was filed. On appeal the Commission specified that 918 records are implicated without further elaboration. Without more information, this office cannot determine whether copying the 918 records in a timely manner would be unmanageable. The need to conduct a "full review" does not justify such a delay as the duty to redact public records per KRS 61.878(4) is an ordinary part of satisfying a request and has not been deemed, in and of itself, a reason for additional delay. See 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"); 12-ORD-227. Further, the Commission did not specify the difficulties associated with locating and retrieving the documents, if any, nor did the Commission specify the date by which copies would be provided.
While a reasonable extension of time might very well have been justified on the unique facts presented here, and nothing in the record on appeal raises the question of good faith, it is incumbent on the Commission, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. A public agency response advising that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Open Records Act. 96-ORD-238, p. 2. Any other interpretation of the Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act]," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). A delay of approximately one month has not been justified here notwithstanding the ongoing efforts of the agency.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
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