Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Managing Editor Brendan McCarthy, Kentucky Center for Investigative Reporting ("Center"), initiated this appeal by letter dated August 18, 2016, challenging the actions of the University of Louisville ("University") relative to his December 24, 2015, request "to inspect and/or copy" the following:
1) any/all minutes of meetings of the "Conflict Review Board" from 1/1/2010 through present date
2) any/all staff agendas of the "Conflict Review Board" from 1/1/2010 through present date
3) any/all staff lists, membership documents or listings related to members of the "Conflict Review Board"
4) any/all staff lists, membership documents or listings related to members of the "Conflict of Interest Program" staff
On January 6, 2016, Records Custodian Sherri Pawson acknowledged receipt of Mr. McCarthy's request 1 but advised that when she "notified the appropriate university officials regarding your requests, they voiced concern over the sheer volume of records that may be responsive and the time to identify and review the documents." 2 On January 12, 2016, Mr. McCarthy inquired as to whether Ms. Pawson had "[a]ny idea on the scope/size of responsive documents" to better enable him to "discuss potential tailoring of scope." Mr. McCarthy provided a "winnowed down list, in order of importance," on January 14, 2016, in response to Ms. Pawson's request for him to "supply a reasonable list of names." Ms. Pawson advised that the University would do "its best to identify all responsive records for those individuals," adding the language "concerning those persons on your list" as to items 1 and 2 of the request identified as 16-005 (and similar modifying language to all items of 16-004). On February 5, 2016, Mr. McCarthy followed up on his "Jan. 14 limited request." Ms. Pawson advised that she had "received some records but there are more to come. The volume, even with the narrowed request, is quite a bit and the review is taking a great deal of time." Having received no further correspondence, Mr. McCarthy again checked on the status of his request by e-mail dated June 30, 2016, noting "[i]t's been 6 months since I filed my amended, limited request." On July 1, 2016, Ms. Pawson confirmed that she owed Mr. McCarthy a response, advising that she would "check on the status and get back with you on Tuesday." Ms. Pawson further indicated that she would do her "best to get the records to you next week."
In his August 18, 2016, appeal, Mr. McCarthy emphasized that nowhere in the correspondence that followed submission of his two December 24, 2015, requests, identified as 16-004 and 16-005 by the University (see note 2), did Ms. Pawson specify whether the request for clarification related only to 16-004, or also related to 16-005, the latter of which the University has "not fulfilled any aspect of" in a period of eight months. Mr. McCarthy further noted that in her January 14, 2016, e-mail, Ms. Pawson "appeared to ignore" items 3 and 4 of the subject request, 16-005. To date, Mr. McCarthy asserted, the University has "failed to cite, with specificity, what actions it has taken to fulfill this request" or provide a "timeline for production." His point is well-taken.
Upon receiving notification of Mr. McCarthy's appeal from this office, Ms. Pawson responded on behalf of the University. Ms. Pawson maintained that Mr. McCarthy's appeal "should not be considered" as the University has been "providing documents on a rolling basis." In defense of the University's position, Ms. Pawson observed that in her correspondence regarding this matter "each time I referenced both 16-004 and 16-005 together." Ms. Pawson believed that the "confusion arose when Mr. McCarthy did not expressly ask me about any particular portion of his request. His questions were always more of a general status inquiry." Ms. Pawson "thought it was clear" that she has been working to respond to both 16-004 and 16-005. Focusing on the volume of documents responsive to 16-004, the University offered no further explanation for the significant delay in producing any documents responsive to 16-005, the basis of this appeal, but reiterated that its correspondence "referenced the entirety of his request[s]," that it expected to "wrap up the work on the COIs [responsive to 16-004] next week," and that it will begin a "rolling production" of the other documents.
Even assuming that the University's response was timely, it was otherwise deficient insofar as it failed to either provide Mr. McCarthy with access to all existing responsive documents within that period of time or cite the applicable statutory exception(s) and explain how it applied to any records being withheld in writing per KRS 61.880(1). The University failed, in the alternative, to expressly invoke KRS 61.872(5), 3 the statutorily recognized exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date when the documents would be available. See 12-ORD-151; 13-ORD-035. Absent from the initial and supplemental response by the University is any reference to KRS 61.872(5); also lacking is the requisite detailed explanation of the cause for delay. If any of the records being sought were "in active use, in storage or not otherwise available," the University failed to specify which of these permissible reasons for delay applied, if any, or to what extent.
A public agency such as the University is required to comply with the procedural and substantive provisions 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." Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6; 01-ORD-140, p. 4; 06-ORD-147; 10-ORD-201; 11-ORD-035. The University violated the Act in failing to issue a timely written response and provide access to any existing responsive documents not protected from disclosure, as it did not expressly invoke KRS 61.872(5) or satisfy the requirements of that exception. See Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011)(agreeing with Attorney General that agency violated KRS 61.880(1) in failing to issue a written response within three business days and in failing to provide a written explanation for the inability to provide the records based, in that case, on their nonexistence); 13-ORD-052.
Vague reasons for the delay and estimates of how long it will be, such as those provided in the University's initial and subsequent responses, have been deemed insufficient for purposes of complying with KRS 61.872(5), requiring a "detailed explanation" and the "place, time, and earliest date" when records will be available for inspection. 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available . . ."); 07-ORD-158 (response that agency was "in the process of filling" the request and expected to fill it "within the next two weeks" did not suffice); 08-ORD-006. In addition, the need to identify and review documents alone did not constitute a sufficiently detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 02-ORD-217 (agency response that complying with request "will be a very time-consuming task since you are requesting records that date back to 1998" was not sufficiently detailed as it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request"); 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary"); 15-ORD-029 (merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause . . . for further delay"); 12-ORD-043; 13-ORD-168; 14-ORD-047.
On appeal the University made no attempt to remedy this deficiency. "In the absence of a legitimate detailed explanation of the cause for delaying access" for approximately eight months to date, the Attorney General finds that Mr. McCarthy has not received "timely access" to any responsive documents. 13-ORD-052, pp. 6-7; 16-ORD-188 (University of Louisville's response was not timely under KRS 61.880(1) nor did it satisfy the requirements of KRS 61.872(5)); 16-ORD-205. Because the University has not, as of yet, denied any portion of the request identified as 16-005, this office has no basis upon which to find that a substantive violation has been committed.
Either party may appeal this decision may appeal it by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must 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 Whether being closed for break tolls the agency's time for a response is unclear as KRS 61.880(1) excludes only "Saturdays, Sundays, and legal holidays." See 01-ORD-94 ("spring vacation" for a primary school did not qualify as "legal holiday"); 09-ORD-191 (absence of records custodian and legal counsel for the agency due to fall break did not justify a delay beyond three business days). A conclusive determination is unnecessary here given that the University delayed access well beyond three days past when it was actually received on January 6 without properly invoking KRS 61.872(5). See 15-ORD-174.
2 Mr. McCarthy submitted two separate requests on December 24, 2015, identified for internal tracking purposes by the University as 16-004 and 16-005, respectively. In subsequent communications, the University referenced both request numbers. Mr. McCarthy emphasized on appeal that 16-004 is a "separate, unrelated records request" and 16-005 is the subject of this appeal. This office notes that some of the apparent confusion likely resulted from the fact that Mr. McCarthy submitted two separate requests via e-mail attachment simultaneously and the University proceeded to send joint responses though it had only begun processing 16-004.
3 KRS 61.872(5) states:
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.