Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Christophe Stewart appeals the Louisville-Jefferson County Metropolitan Sewer District's disposition of his October 19, 2015, request for records related to district legal services. Specifically, Mr. Stewart requested to inspect:
1. Applications, correspondence including but not limited to emails, proposals, responses to requests for proposals to provide legal services to [MSD] and or related entities;
2. All invoices for legal services submitted by Zielke Law Firm, PLLC; [and]
3. All cancelled checks for payment for services rendered by Zielke Law Firm, PLLC[.]
He asked for responsive records generated in 2010, 2011, 2012, and 2013. Dissatisfied with delays in receipt of the requested records, Mr. Stewart initiated this appeal on November 3, 2015, challenging "MSD's failure to properly and timely respond to the requested information."
In the interim, Mr. Stewart exchanged emails with representatives of MSD. On October 22, 2015, he contacted paralegal Lore Berglund inquiring about the status of his request. Ms. Berglund apologized for the delays in honoring his request and explained that MSD was collecting responsive records but would require "at least one week to do so." Mr. Stewart states that he submitted a follow-up email to Ms. Berglund on November 2, advising her that his October 19 open records request was "14 days old." MSD denies receipt of that email. In its defense, MSD argues that its assistant general counsel "left a message" for Mr. Stewart on an unspecified date, asking that he contact her to clarify his request. Counsel states that she received no response to her oral request.
Further, MSD asserts, the process of gathering the records had begun when it received the Attorney General's notification that Mr. Stewart had initiated an open records appeal. Continuing, counsel maintained:
In an effort to resolve this matter, MSD contacted Mr. Stewart on November 10, 2015 to inform him of the availability of the records and to attempt to clarify his request with regards to his request for records described in item # 1 of his open records request. During our telephone conversation . . . Mr. Stewart clarified that he was only interested in records relating to the Zielke Law Firm. Additionally, I informed Mr. Stewart that MSD does not possess cancelled checks but offered alternative financial records available from MSD's financial database. Mr. Stewart stated that he would be interested in copies of these records and it was agreed that these records would be made available to him on Friday, November 13th.
On November 11, MSD issued its final written response to Mr. Stewart, advising him that request 1 would be honored in full; request 2 would be honored but invoices would be redacted to protect substantive legal matters; 1 and that check information maintained in the agency's database would be disclosed to him in full. The records, MSD concluded, would be available by Friday afternoon, November 13. 2
MSD violated KRS 61.880(1) and KRS 61.872(5) by failing to provide a sufficiently detailed explanation of the cause for delay in the disclosure of responsive records and to indicate the earliest date on which the records would be disclosed. Because MSD was unable to fulfill Mr. Stewart's request within three business days, as required by KRS 61.880(1), it was legally obligated to so notify him, in writing , on the third working day pursuant to KRS 61.872(5). That statute provides:
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.) MSD's October 22 emailed response, noting that it was "in the process of requesting and collecting the records" he requested, and advising that it would require "at least one week," did not satisfy the strict legal requirement found at KRS 61.872(5). See, e.g., 01-ORD-38 (university violated KRS 61.880(1) and KRS 61.872(5) by failing to produce nonexempt records within three business days, or, alternatively, to provide requester with a written and detailed explanation of the cause for delay and the earliest date certain on which the records would be available). A copy of 01-ORD-38 is enclosed and its reasoning adopted in full.
Additionally, we note that in partially denying Mr. Stewart's request MSD failed to provide adequate citation to the statutory bases supporting partial denial. MSD invoked KRS 61.878(1)(k) and (l) to support its position. Those exceptions to the Open Records Act authorize public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[. ]
MSD did not cite the "federal law or regulation" or the "enactment of the General Assembly" making confidential, or prohibiting disclosure of, substantive legal matters in contract attorneys' invoices. Although ample authority supporting nondisclosure of substantive legal matters can be located in existing law, MSD did not fully discharge its statutory duty by citing KRE 503 and CR 26.02. See, e.g., 11-ORD-108 (city failed to provide sufficient support for the invocation of the attorney-client and work product privileges). A copy of 11-ORD-108 is enclosed and its reasoning adopted in full. Because its final written response contained no reference to federal or state law authorizing nondisclosure of substantive legal matters contained in attorney invoices, the response was deficient.
Finally, absent a detailed explanation of the cause for the seventeen working day delay, we agree with Mr. Stewart that MSD failed to afford him timely access to the records identified in his request. There is no dispute concerning the date on which he submitted his request, October 19, and the date on which the records were produced, November 13. In a November 12 supplemental response, counsel advised us that "[m]ost if not all the records [Mr. Stewart] requested are 'inactive' records and would not have been available within three business days." A copy of the response was mailed to Mr. Stewart. The response was directly addressed to this office, and not to Mr. Stewart, who was entitled to such response, pursuant to KRS 61.872(5), before he initiated his appeal. In any event, it did not contain a detailed explanation of the cause for delay and was therefore deficient. See 12-ORD-043 (state cabinet violated Open Records Act by failing to afford requester timely access to records identified in her request). A copy of 12-ORD-043 is enclosed and its reasoning adopted in full.
Because Mr. Stewart raised no objection to the redaction of substantive legal matters from attorney invoices, or the substitution of the only available record containing check information, we assign no substantive error to MSD in the ultimate disposition of his records request.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 MSD relied on KRS 61.878(1)(k) and (1) to support these redactions but did not cite the federal or state confidentiality provisions to which they relate.
2 Mr. Stewart raised no objection to the ultimate disposition of his request.