Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Nicholas Morris initiated this appeal challenging the disposition by the Jefferson County Public Schools (JCPS) of his March 17, 2015, request for "an opportunity to inspect or obtain copies of public records for Organization/Structural Charts for Digital Technology - planned, present, and past dating back to 2012." 1 On appeal Mr. Morris asserted that "the planned Organization/Structural Chart has already been shared with co-workers in a past meeting on 10/10/2014, that I was unable to attend." Some of the records were released in a public meeting on April 22, 2015, according to Mr. Morris, and the "records have already existed in their entirety since 05/07/2012." Implicitly relying upon KRS 61.878(3), Mr. Morris argued that "JCPS denied, abridged, or impeded the right of a public agency employee to inspect and to copy any records," including preliminary and other supporting documentation, that related to him.
On July 17, 2015, Mr. Morris supplemented his appeal. Mr. Morris advised that on July 14, 2015, JCPS provided him with all existing documents responsive to his March 17, 2015, request for "Organization/Structural Charts for Digital Technology - planned, present, and past dating back to 2012," but maintained that JCPS subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), by failing to afford him timely access to said charts. 2 Interim Director of Communications Stephanie Bateman, advised Mr. Morris by letter dated July 14, 2015, that she was attaching the documents responsive to his March 17 request; Ms. Bateman apologized "if personnel changes in the Communications Department this spring delayed your receipt of a prompt response." 3 Mr. Morris provided this office with a copy of said letter. JCPS offered no further explanation for the admitted failure to provide Mr. Morris with timely access to existing responsive documents.
By letter dated July 27, 2015, legal counsel for JCPS acknowledged that "it appears there was an oversight with respect to the second request." Reiterating that JCPS "regrets the delay," counsel observed that "[i]t was, however, not designed to subvert Mr. Morris' access to public records, " but was "wholly unintentional. Mr. Morris offers nothing to the contrary." Mr. Morris replied that JCPS "procedurally failed to respond to my request within three business days, they did not conduct a reasonable search of records, and did not provid[e] sufficient information about the documents they had chosen to withhold from me." Accordingly, Mr. Morris reiterated his belief that JCPS subverted the intent of the Act within the meaning of KRS 61.880(4). Given the mandatory language of KRS 61.880(1) and 61.872(5), as well as 61.880(4), this office agrees that in delaying access for approximately four months, JCPS subverted the intent of the Act within the meaning of KRS 61.880(4) regardless of whether its failure to provide timely access to existing nonexempt records in the custody of the agency was intentional as "personnel changes" is not a permissible reason for delay under KRS 61.872(5).
The agency's response(s) satisfied neither KRS 61.880(1) nor KRS 61.872(5). See 14-ORD-226. A public agency such as JCPS must comply with substantive and procedural requirements of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." (Emphasis added.) It appears from the record on appeal that no additional correspondence was exchanged following the April 1, 2015, disclosure of documents responsive to Mr. Morris' other March 17 request. Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6.
Thus, in construing KRS 61.880(1), the Attorney General has consistently recognized:
"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). Contrary to [the agency's] apparent belief, the 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:
. . . 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. See, e.g., 01-ORD-140; 04-ORD-138; 06-ORD-180; 09-ORD-007; 13-ORD-098.
By failing to issue a written response to Mr. Morris' March 17, 2015, request within three business days of receipt and provide all existing responsive documents, or cite a statutory basis for denying access, in whole or in part, JCPS violated KRS 61.880(1) as it did not invoke KRS 61.872(5) nor does it seem to apply on the facts presented. See 10-ORD-201; 12-ORD-105; 14-ORD-026. In the absence of a legitimate detailed explanation of the cause for the delay of approximately four months in providing access, the Attorney General must conclude that JCPS did not provide Mr. Morris with "timely access" to records provided only after he initiated the instant appeal. This excessive delay subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), as the records were apparently not "in active use, in storage or not otherwise available." See 10-ORD-138 (Cabinet for Health and Family Services, "without adequate explanation for the delay pursuant to KRS 61.872(5)," subverted the intent of the Act in delaying access to personnel file of employee for more than two months); 13-ORD-004 (Paintsville Utilities subverted the intent of the Act in delaying access to monthly invoices for insurance premiums for a ten-year period for a period of nine and one-half weeks); 13-ORD-053 (Library Board subverted the intent of the Act in failing to provide timely access to records pertaining to building renovations); 14-ORD-040 (City of Taylorsville both violated KRS 61.872(5) in failing to provide a detailed explanation of the cause for delay and identify a specific date when requested invoices would be produced and subverted the intent of the Act in delaying access for nearly two months).
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.
Footnotes
Footnotes
1 Mr. Morris also submitted a separate request dated March 17, 2015, for "an opportunity to inspect or obtain copies of public records for Digital Technology - average amount of tickets completed and arranged by telecom technician since 2012 - reported by month." In his undated letter of appeal Mr. Morris advised that he was allowed to inspect said records and obtain copies of the originals on April 1, 2015, which fulfilled that request. Accordingly, our analysis focuses exclusively on the actions of JCPS relative to his other March 17 request.
2 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
3 By e-mail dated March 27, 2015, Mr. Morris advised former Communication Specialist Ben Jackey that he still had not "received a formal timetable for when these requests will be filled." Mr. Jackey advised that he thought both requests had been filled but advised that he would "check with Craig and see what the time frame is."