Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Morgan County Fiscal Court violated the Open Records Act by failing to provide records concerning its animal control officer, its county animal shelter, and financial assistance for the county animal shelter. We find that the agency procedurally violated the Act by not giving a detailed explanation for its delay in providing the requested records and continues to be in substantive violation of the Act until it does provide those records.
Randy Skaggs submitted an Open Records Request, dated October 28, 2016, addressed to the County Judge executive of Morgan County, requesting eight specific sets of records pertaining to the county's animal control officer; eleven specific sets of records pertaining to the county's animal shelter and animal control program; and records relating to "any application for financial help to the Kentucky Department of Agriculture's Animal Control Advisory Board for grants to construct or improve an animal shelter. " Mr. Skaggs asked to be informed by November 11, 2016, as to whether the agency would honor the request. On November 3, 2016, Beth Roy, Morgan County Fiscal Court, emailed a response to Mr. Skaggs which stated that the agency would comply with the request. "However, it may be delayed. Our animal control officer is off on medical leave. I believe she will be back in time to get that info to you before Nov 11, but maybe not! We will try our best." Having received no further response, Mr. Skaggs sent an Open Records Appeal, dated November 18, 2016, to the Office of the Attorney General.
Michael Bass, Assistant County Attorney, responded to the Open Records Appeal on behalf of the Morgan County Fiscal Court by letter faxed on November 30, 2016. Mr. Bass explained that the "Morgan County Animal Shelter is a very small operation, with one full time employee and one part time employee (and no in-house computer). The full time employee, who is the only person who can realistically respond to this request, was off for more two months on medical leave, returning only on November 21. I have been informed that, because our full time employee is now back, we will be able to respond to the request by December 16, 2016. While I cannot guarantee full disclosure at that time, we will be able to give the requesting entity a more specific response."
The initial response to Mr. Skaggs from Ms. Roy agreeing to "comply with [the] request" was made within the three business days required by KRS 61.880(1), but failed to comply with KRS 61.872(5), which requires that when production of the requested records will extend beyond three business days, a detailed explanation of the cause must be "given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " The agency's response that it believed that the animal control officer would be back in time to provide the records before November 11, 2016, was further weakened by the words that followed: "...but maybe not! We will try our best." Vague reasons for the delay and estimates of how long it will be, such as those provided in the agency's initial, 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. The Fiscal Court's response failed to provide the certainty required by KRS 61.872(5) as to the "earliest date" that the records would be available. In this, the agency committed a procedural violation of KRS 61.872(5).
The agency's initial response implied that records production depended upon the presence of the animal control officer and Mr. Bass' letter, 39 business days later, further confirmed that conclusion. However, the Fiscal Court is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests made under the Open Records Act. Notwithstanding the challenges impeding the ability of the Fiscal Court to comply in this instance, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"). In the event that the official records custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff").
Mr. Bass' letter offers no explanation of why the agency did not respond to the open records request after the scheduled return to work of the animal control officer on November 21, 2016. While a reasonable extension of time may have been justified on the facts presented, it was incumbent on the Fiscal Court, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4.
Mr. Bass' response also fails to invoke, or comply with, KRS 61.872(5) which requires that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5. 01-ORD-140, pp. 3-4 (emphasis added). While the agency articulates the practical constraints faced in responding to Mr. Skaggs' request, the Open Records Act requires compliance.
Mr. Bass' letter strongly implies that not all records will be disclosed, but fails to cite 1 and explain any exemption under KRS 61.878 that justifies the expected nondisclosure of all requested records. The Morgan County Fiscal Court is, and continues to be, in substantive violation of the Act until it produces the records requested by Mr. Skaggs.
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 must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.
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