Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
David Wilson initiated this appeal by letter dated October 26, 2016, alleging that the Education Professional Standards Board ("EPSB") subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), by failing to provide him with timely access to documents responsive to his August 26, 2016, request for the following records from 2014-2016: 1
1. Lists of all people trained and approved to conduct accreditation site visits for EPSB/CAEP accreditation purposes. . . .
2. Documents that provide dates, locations, and the EPSB trained people assigned to accreditation site visits that occurred. . . .
Mr. Wilson also requested "[a]ny written policy related to qualifications of site visitors and rules pertaining to site visitors and accreditation site visits." 2
Mr. Wilson advised on appeal that he presented the request to the receptionist at the EPSB office and was initially advised that responsive documents would be "available in a few minutes." When he returned later that afternoon, EPSB advised Mr. Wilson that fully complying with his request was complicated insofar as he asked for qualified site visitors from prior years; accordingly, Mr. Wilson asked for the records from 2016 only. EPSB then advised that staff would have to search through boxes in order to locate all responsive documents. Mr. Wilson acknowledged that "the responsive records were provided the following week," but "suspect[ed]" that the delay "was really an excuse to provide EPSB with an opportunity to discuss the matter and warn [EPSB Records Custodian] Verna Lowe to remove her name from her 'consulting' website, therefore concealing the fact that she was in direct violation of EPSB policy."
Upon receiving notification of Mr. Wilson's appeal from this office, General Counsel Lisa K. Lang responded on behalf of EPSB. Ms. Lang advised that, "not only did the EPSB not subvert the intent of the Open Records Act, but the EPSB attempted to go above and beyond the requirements of the Act by providing Mr. Wilson with those documents responsive to his request within the one (1) business day after the EPSB received his request rather than the three (3) business days allowed by KRS 61.880(1)." Attached to Ms. Lang's appeal response was a copy of Ms. Lowe's August 29, 2016, response to Mr. Wilson's request; EPSB included all existing responsive documents with limited redactions made pursuant to KRS 61.878(1)(a) and (k), which are not in dispute. Based upon the following, this office has no basis upon which to find that EPSB subverted the intent of the Open Records Act in the disposition of Mr. Wilson's request notwithstanding his unsubstantiated allegations regarding the motives of EPSB staff or his peripheral concerns, neither of which is justiciable in this forum.
As a public agency, EPSB is obligated to comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access. See Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to properly submitted requests. In relevant part, KRS 61.880(1) 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.
(Emphasis added). To clarify, "the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, p. 3. Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 3 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days if the records are "in active use, in storage or not otherwise available." 4
In 96-ORD-207, the Attorney General observed the following in addressing the issue of whether a response was timely under the Act:
The computation of time statute, KRS 446.030(1)(a), which would be applicable to time requirements of the Open Records Act, reads as follows:
Id., p. 1; 10-ORD-102 (agency mailed a written response on the second business day after it received the request per KRS 61.880(1) and the Attorney General therefore had no basis upon which to find that a violation of the Act was committed); 09-ORD-187.
Mr. Wilson delivered his request on Friday, August 26, 2016; both Saturday, August 27, 2016, and Sunday, August 28, 2016, must be excluded in the computation of time per KRS 61.880(1) and 446.030. Thus, Monday, August 29, 2016, the date on which EPSB mailed its response, was the second day of the three permitted, and therefore was easily within the permissible statutory time frame. See 07-ORD-229; 09-ORD-195. "Contrary to Mr. [Wilson]'s apparent belief," EPSB "is not required to 'immediately' produce records, but may take up to three days to issue a response and produce the records." 93-ORD-94, p. 2. EPSB complied with KRS 61.880(1) in the disposition of Mr. Wilson's request and this office has no basis upon which to conclude that EPSB subverted the intent of the Open Records Act.
Either party may appeal this decision 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 KRS 61.880(4) provides that "[i]f a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
2 The record on appeal is unclear as to whether EPSB maintains responsive lists. If not, EPSB was "not obligated to compile a list or create a record to satisfy an open records request." OAG 76-375; 16-ORD-052. Because EPSB did not deny Mr. Wilson's request on that basis, additional discussion is unwarranted.
3 02-ORD-165, p. 3.
4 Pursuant to KRS 61.872(5):
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.
EPSB immediately notified Mr. Wilson that additional time in which to conduct a search was required. Inasmuch as EPSB subsequently provided a timely written response and produced the responsive documents, the remainder of KRS 61.872(5) is not applicable.