Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
On behalf of her client, Jennifer Barbour appeals the City of Glenview's disposition of her March 16, 2016, request for records related to a property dispute. Ms. Barbour requested all:
. plans, correspondence, plats, surveys, proposals, electronic communications, permits, minutes, and photographs related to 3609 Glenview Avenue, 3611 Glenview Avenue, and 3613 Glenview Avenue from 2012 to the date of her request;
. deeds, agreements, contracts, plats, and surveys that "reflect, evidence, or demonstrate a right of way of the City of Glenview onto 3609 Glenview Avenue";
. documents pertaining to a proposed driveway between 3609 Glenview Avenue and 3605 Glenview Avenue from 2012 to the date of her request; and
. documents, including correspondence, electronic communications, plans, plats, surveys, and permits, between the City of Glenview, or any person(s)/engineer (s) acting on the city's behalf, and PF Development 27, LLC, Kindred Healthcare, Inc., Stephen Farber, Rachel Farber, or Goldberg Simpson, or their agents and employees, from 2012 to the date of her request.
On March 22 the city responded to Ms. Barbour's request by producing the minutes of a city commission meeting and a letter from the mayor to the Metropolitan Sewer District. Based on KRS 61.878(1)(i) and (j), the city indicated that it would not release preliminary and pre-decisional documents. Additionally, the city advised that other records "may exist" that are in active use or that are not in the mayor or city clerk's possession. Advising Ms. Barbour that her request had been forwarded "to Glenview officials who may possess responsive records," the city stated that it would supplement its response on April 15, 2016.
While discussions relating to Ms. Barbour's records requests were underway, the city commenced a search for responsive records. This search yielded some 1,000 pages. Giving no indication that any documents were withheld, on April 15 the city extended an offer to Ms. Barbour to review the records subsequently located. Ms. Barbour reviewed the records on April 26 and obtained copies of some one hundred pages. Upon notification of Ms. Barbour's April 7, 2016, open records appeal, the city apprised the Office of the Attorney General of these developments, urging us to dismiss her appeal. In supplemental correspondence, Ms. Barbour advised that the issue of access to plans, plats, surveys, permitting applications, or permitting documents "prepared, owned, used, in the possession of or retained by the city" remains in dispute and that the city's delays, overall, have impeded her right of timely access. With respect to her request for correspondence, she focused on two emails that were not produced on April 26 but which she obtained through discovery in a separate legal action.
In a May 20 response to Ms. Barbour's objections, the city asserted:
. that it does not have "a formal application and permit process for driveway encroachments into public rights of way . . .," that these matters are therefore handled on an ad hoc basis and that all responsive records in its possession were produced;
. that the construction site plans the city engineer used in a meeting with Ms. Barbour's client to identify the disputed right of way on the client's property "was not a Glenview record and was returned to the [privately retained] engineer the same day [the city's] engineer displayed it to [Ms. Barbour's client]"; and
. that the city's failure to locate the referenced emails did not reflect a less than diligent search, but, instead, Ms. Barbour's erroneous assumption that the mayor retains copies of his email. Noting that the mayor "delete [s] a lot" of his email, the city affirmed that it "provided copies of that which we kept."
Following a delay occasioned by the city's failure to provide her with a copy of its May 20 supplemental response addressed to this office, Ms. Barbour responded:
. that, based on the testimony of a [privately retained] engineer, who was deposed in the pending legal action, communications were exchanged and documents were shared with the city in order to satisfy the city's requirements in advance of final city approval;
. that City of Glenview Ordinance No. 3, Series 1994, establishes a formal application and permitting process by prohibiting, inter alia , construction and excavation within the city "unless all necessary approvals and permits are obtained . . ."; and
. that the city's search was inadequate insofar as the city did not search the email servers or back-up tapes and/or the email accounts of other users through which responsive emails might have passed.
Having reviewed the extensive record on appeal, we find that the City of Glenview failed to afford Ms. Barbour timely access to the records she requested and that the city's inability to produce at least three documents, the existence of which must be presumed from the referenced ordinance and objective proof obtained in discovery, 1 establishes an inadequate search for responsive records, improper records management practices, or both.
KRS 61.880(1) requires public agencies that receive an open records request to determine within three business days "whether to comply with the request and [to] notify in writing the person making the request, within the three (3) day period, of its decision." Where an agency cannot produce the records identified in an open records request within three business days because the records are "in active use, in storage, or not otherwise available," KRS 61.872(5) mandates a written response on the third business day that contains "a detailed explanation of the cause for further delay and the place, time, and earliest date on which the public record [s] will be available for inspection. "
The city failed to afford Ms. Barbour timely access to the records identified in her request. It justified the three and one-half week delay as follows:
Gathering those records, reviewing them for responsiveness, determining whether the Act requires their disclosure and supplementing this letter will take some time. [The city forwarded Ms. Barbour's request] to those Glenview officials who may possess responsive records and asked that they submit them as soon as possible.
The challenges associated with producing these records are challenges associated with fulfilling any open records request. "The General Assembly," Kentucky's Supreme Court has observed, "has already mandated that all public agencies . . . must separate materials exempted from disclosure in a document from materials that are subject to disclosure." Com. v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008) citing KRS 61.878(4) at note 29. Ultimately, "the fact that complying with an open records request will consume both time and manpower" does not relieve the agency of its duties pursuant to KRS 61.872(6), or permit the agency to extend the deadline for its final response by an inordinate period of time pursuant to KRS 61.872(5). See OAG 92-117 (recognizing that timely access is defined as "any time less than three days from agency receipt of the request" and that "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") cited in 14-ORD-026 and citing OAG 82-300. Given the city's inadequate records retention practices, we find that a three and one-half week delay in producing the records Ms. Barbour requested was not justified under the Act. See, generally, Chestnut, 250 S.W.3d at 666 (recognizing that a public agency "should not be able to rely on any inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request").
This omission calls into question the adequacy of the city's search for records and raises records retention and management issues. The city provides a description of a search limited to the "Glenview officials who may possess responsive records." The city acknowledges that the mayor "delete [s] a lot" of emails. The city also acknowledges that documents used in the decision-making process, including the construction site plans that the city engineer brought to a meeting with Ms. Barbour's client to identify the disputed right of way on the client's property were returned to the private engineer who provided them to the city. The record on appeal is devoid of evidence that the city attempted to recover such records.
The city gives no indication that it conducted a search of the email server or backup tapes, or the accounts of employees who might reasonably have been expected to receive them. 06-ORD-022; see also 15-ORD-011. Under the standard set forth in these open records decisions, its search was inadequate. Nor does the city indicate that it attempted to recover the construction site plans or any other plan, plat, survey, or documents submitted to, and used by, the city for purposes of final decision-making. Public agencies cannot impede access to public records by effectively rendering them inaccessible. Any "documentation, regardless of physical form or characteristics" that is "prepared, owned, used, in the possession of or retained by a public agency" is a public record. KRS 61.870(2). See 99-ORD-202 (public agency cannot "secret away public records on private premises and thus avoid the requirements of the Open Records Act" ); 00-ORD-207; 12-ORD-120. The city improperly returned the records upon which it relied in approving the application for construction.
Moreover, nonexempt public record must be produced by the agency in response to an open records request for the period of time fixed by the applicable records retention schedule. Pursuant to KRS 171.420(3) , the Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of [public] records . . . . 2 Records of the City of Glenview are governed by the Local Government General Records Schedule and the Municipal Government Records Retention Schedule. Public officials are not authorized to delete, at will, correspondence relating to public business whether transmitted by hard copy or electronically. Similarly, maps, plats, plans, and drawing files that were submitted to the city for purposes of securing approval of the new curb are subject to retention requirements. The City of Glenview's failure to observe these requirements demonstrates a lack of understanding of its records retention and management duties under KRS Chapter 171 and the appropriate records schedules. See KRS 61.8715 (recognizing "an essential relationship between the intent of [Chapter 61, relating to Open Records,] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . .") In light of these statutory requirements, and pursuant to KRS 61.8715, this appeal is referred to the Department for Libraries and Archives. Until the City has conducted a search "using search methods which can reasonably be expected to produce the records requested," 3 including an examination of the server and backup tapes and an attempt to recover records used in its decision-making process is made, its duties under the Act will not be fully discharged.
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.
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