Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Brook Ping appeals the City of Somerset's response to his May 9, 2016, requests for, among other things, construction permits and approvals for six separately identified construction projects. Mr. Ping's request reached the city on May 13, 2016, and a response was issued on May 16, 2016. In that response, the city notified Mr. Ping that it could not honor his request on the third business day, but that it would do so on June 8, 2016. Mr. Ping appealed this delay, expressing concern about his immediate need for the records and his fear that the city would "use the three weeks . . . to make up [the] records" sought.
In supplemental correspondence directed to this office, the city amplified on its original response. The city explained that the date on which Mr. Ping's request arrived was "in the middle of an extensive effort to move numerous departments previously housed in multiple locations over to [its] newly constructed Energy Center." At that time, and to the present, "city employees [were and] are essentially working out of boxes. " Continuing, the city observed:
Some of the items Ping seeks are currently maintained by the building inspector and code enforcement officer at their temporary office in downtown Somerset. Other items are (and were) boxed up and being moved from the water/sewer department manager's office into a new space at the Energy Center. Still other items are with the City engineer at a third location in Somerset. And some items Ping seeks are in formats and sizes that cannot simply be placed in a machine and photocopied. Even if the City's various departments weren't moving to new offices, Ping's requests still cover a large volume of records that will have to be gathered from several locations and then reviewed for responsiveness and applicable exemptions.
The city acknowledged that it could have provided this additional detail in its original response but maintained that, in light of these facts, a three week extension of the deadline was warranted. 1
KRS 61.880(1) establishes the requirements for agency response to an open records request. The statute provides:
Each 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. 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The City of Somerset complied with this provision by issuing a written response on May 16, three working days after the request's May 13 arrival.
Recognizing that the volume of records implicated by the request, and their wide dispersal across city government necessitated an extension of the three working day deadline, the city notified Mr. Ping that it would require an additional three weeks to locate and review the requested records. Authority for this less than detailed response is found in KRS 61.872(5) which 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.
On appeal, the city provided the level of detail justifying the extension that KRS 61.872(5) envisions. Indeed, the statute expressly references records that are "in active use, in storage, or not otherwise available." The circumstances of the city's move, including the boxing up of records, were sufficient to support the extension. Compare, 01-ORD-38 (request for a broad range of widely dispersed agency records for a three year period of time on a variety of topics justified an extension of time for inspection) with 00-ORD-117 (request for records of an identified, limited class that could be readily accessed did not justify an extension of time) . We urge the city to provide this level of detail in its responses to any future requests implicating an extension of the three day deadline, but affirm its position in all material respects.
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 The city also responded to Mr. Ping's belief that the three week period might be used to fabricate records. The city flatly denies that such action could or wold be contemplated. Moreover, because the Open Records Act addresses access to existing public records, and not the possibility that an agency will fabricate records where none exist, we agree with the city that this issue is not appropriate for review under the Act.