Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether Louisville Metro Government ("Louisville Metro") violated the Open Records Act in failing to respond to a request for records within three business days and in failing to specify the exemptions under which documents were withheld. We find that Louisville Metro procedurally violated the Open Records Act in not responding to a request for records within three business days and in failing to specify the exemptions under which documents were withheld. Louisville Metro subsequently cured the deficiency by providing responsive records and stating the exemptions under which records were being withheld.
William C. Ransdell, Jr. ("Ransdell") submitted an open records request by email to Louisville Metro on Aug. 1, 2015. Ransdell requested "all e-mails, hand written notes, inner office mail and fax sent to or from Jessica Thornton. Also all mms or instant and text messaging to and from [phone number] or any phone assigned to Jessica Thornton." Having received no further response, Ransdell sent another email to Louisville Metro on Aug. 10, 2015 stating that he had "not yet received a message on the request as of yet." Louisville Metro responded by email on Aug. 11, 2015, stating "the final response containing all nonexempt responsive records is attached." Ransdell sent another email request dated Aug. 13, 2015, in which he requested the same documents as in his Aug. 1, 2015 request, adding that "I am requesting this information again because I feel there might have been confusion on the last request. If I'm not allowed this information please explain why per the KRS 61.878(1) statute."
Ransdell initiated this appeal on Aug. 24, 2015. Ransdell stated:
I feel that it was not a proper response, because I received the same records that I received from a request that I made on 4/20/15. 1 So to clarify, I sent another request asking for the information or a reason why I cannot have the information requested. As of yet to this day 8/24/15 I have not received an answer. I find it hard to believe that all the information I requested is unavailable. Surely some of this information should be available if not redacted.
Louisville Metro responded to the appeal on Sept. 2, 2015, stating:
We apologize for the inadvertent delay in our response to the attached open records requests (both for the same subject matter). The first time our office received a copy of the requests was when copies were delivered yesterday with the protest to the Attorney General's Office. Metro Technology Services researched why the two electronic requests never appeared in our Open Records mailbox for processing and determined that a spam filter containing some of the terms in your requests had diverted the requests and prevented us from ever seeing them.
Thus, we are now processing your requests which will require the assistance of Metro Technology services . . . and we expect to be able to provide the results of their search on or before Sept. 15.
On Sept. 8, 2015, Louisville Metro sent a follow-up email:
Your request is a classic 'any-and-all-records-relating-to type of request. As written, we have identified approximately 35,000 records that come within the parameters you defined. We would ask you to narrow the focus of your request to a subject and time frame that would pertain to a reasonable number of records. Otherwise, your request will be denied per KRS 61.872(6). . . . This effort would necessitate over 2300 hours of time.
Ransdell subsequently sent an email dated Sept. 11, 2015 in which he narrowed his request:
From the following dates of 11-01-14 to 09-09-15. All e-mails, hand written notes, inner office mail and fax sent to or from Jessica Thornton about the following three Union Stewards: "Shain" or Shain Schultz, "Dwight" or Dwight Turner and "Woody" or "William" or William Ransdell. . . . Also all mms/ sms or instant and text messaging to and from [phone number] or any phone and computer pad assigned to Jessica Thornton from Louisville Metro Government.
Louisville Metro responded by email on Sept. 17, 2015, stating:
The phone number in your request was incorrect but we requested records that might be held on the Metro-issued device in the possession of Jessica Thornton of the number: [phone number] . . . . Ms. Thornton conducted a records search and has identified no records meeting your request description in the form of "hand-written notes, inter office mail, instant and/or text messages or fax. "
Metro Technology Services was requested to conduct a search for electronic records related to the Metro-issued device number [phone number] and has responded that it has no access to the records held by the private provider of the services, Verizon.
Metro Technology Services was also requested to conduct a search for any email records meeting your request description and the search is still underway. We expect the search results to be available for review beginning Sept. 18. We will notify you on or before Sept. 23 regarding identification of any records responsive to your request . . . .
On Sept. 23, 2015, Louisville Metro sent another email to Ransdell, stating:
Copies of all nonexempt responsive records identified meeting your request description and timeframe . . . are available on a single CD which may be obtained for the standard recovery charge of $ 2 if picked up, $ 4 if mailed. Please note that some email records have been withheld as exempt in protection of personal privacy in matters of health, medical leave or other personal issues consistent with KRS 61.878(1)(a) and/or federal HIPAA laws and regulations.
KRS 61.880(1) provides that "each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days . . . 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." Louisville Metro did not respond to Ransdell's Aug. 1, 2015 request within three business days. It also failed to respond to Ransdell's Aug. 13, 2015 request at all, although the request was apparently blocked by a spam filter. An agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Commonwealth v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008); 14-ORD-044. Louisville Metro has an obligation to maintain its email systems so that it does not block valid open records requests. In failing to respond within three business days to Ransdell's Aug. 1, 2015 and Aug. 13, 2015 requests, Louisville Metro committed procedural violations of the Open Records Act.
Additionally, Louisville Metro's response on Aug. 11, 2015 to Ransdell's Aug. 1, 2015 request stated "the final response containing all nonexempt responsive records is attached." KRS 61.880(1) further provides that "an agency response denying, in whole or in part, inspection of any record shall 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. " "The language of the statute . . . . requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. Ct. App. 1996). "A 'limited and perfunctory response,' however, does not 'even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." 15-ORD-097 (quoting Edmondson, 926 S.W.2d at 858). Louisville Metro's limited and perfunctory statement that it provided "all nonexempt records" is insufficient to comply with KRS 61.880(1). Accordingly, in not specifying the exemptions under which any records were withheld, Louisville Metro committed a procedural violation of the Open Records Act. However, Louisville Metro subsequently cured the violation in its final response to Mr. Ransdell, invoking the personal privacy exception of KRS 61.878(1)(a) and the Health Insurance Portability and Accountability Act. Since Louisville Metro has provided documents regarding communications from Jessica Thornton concerning "Shain Schultz, Dwight Turner, and/or William or Woody Ransdell," Mr. Ransdell's request is now moot as to those documents.
In summary, Louisville Metro procedurally violated the Open Records Act in failing to respond within three business days and in failing to specify the exemptions under which documents were withheld. Louisville Metro subsequently cured that deficiency by specifying the exemptions and providing non-exempt responsive documents.
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.
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