Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Fish and Wildlife Resources violated the Kentucky Open Records Act in its disposition of Jerrod Alley's March 31, 2017, request for copies of certain hiring records. For the reasons that follow, we find that the Department did not make a full or timely written disposition of the request, and further failed to meet its burden of proof as to the omissions and redactions made.
Mr. Alley's letter, requested by the Department on April 3, 2017, identified the following records:
All documents related to the filling of job listing # 44362BR in the Career Opportunity Services Center that was filled in January of 2016. This should include all Appendix 9 Internal Mobility Applications, letters of recommendation, Sergeant Interview Observational Notes and forms filled out detailing Senority [ sic ] Months, KDFWR LE Total Service, KDFWR LE Supervisory Experience, LE Total Service, LE Total Service and LE Total Supervisory Experience distributed during the interview dates.
On April 6, 2017, records custodian Nan Harnice replied: "We are working on your request and will have documents responsive to your request ready to mail within 7 days of the date of this letter." One week later, on April 13, 2017, Ms. Harnice advised Mr. Alley of a further delay: "Please be advised that we are in the process of gathering documents responsive to your request and will have documents ready to mail within 30 days of the date of this letter pursuant to KRS 61.872." Mr. Alley's appeal to this office is dated April 19, 2017.
KRS 61.880(1) requires that a public agency make a disposition of a request for public records within three days, excluding weekends and legal holidays. 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.
(Emphasis added.) The Department's responses cannot be said to have complied with KRS 61.872(5), since no indication was given that the requested records were "in active use, in storage, or not otherwise available"; nor was any explanation given of the cause for further delay. 1 Moreover, even to the extent the Department attempted to comply with this provision by giving a date for availability of the records, it failed, in its April 6 response, to give a date certain. "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 for inspection. " 01-ORD-38 (emphasis in original). We accordingly find that the Department procedurally violated the Open Records Act in this regard.
On May 2, 2017, the Department's General Counsel, David B. Wicker, provided an update as to the status of Mr. Alley's request:
[The] KDFWR has produced the requested documents in the above referenced matter. The only documents withheld were applications of unsuccessful applicants and preliminary interview sheets with response notes. The successful candidate's application, the Master Scoresheet and the Intent to Hire document for the position were released but redacted . The scoresheet and the intent to hire were redacted to remove references to the unsuccessful candidates.
(Emphasis added.) We examine, first of all, the application of the successful candidate for the position. This statement from the Department does not explain specifically what was redacted from the successful candidate's application. A public agency has the burden of proof in sustaining its action. KRS 61.880(2)(c). Therefore, as to the unspecified redactions made to the successful candidate's application, we must conclude that this burden has not been met. 2
It is our understanding, from representations made by counsel, that the records which were provided to Mr. Alley included no cover letter or other communication identifying which records were withheld or redacted, or explaining the reasons for such omissions. This is a further violation of the Open Records Act, inasmuch as KRS 61.880(1) provides:
Each public agency . . . shall notify in writing the person making the request . . . 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.) Neither by written communication to Mr. Alley, nor in the record on appeal, have any exceptions under KRS 61.878(1) or other provisions of law been raised by the Department. Accordingly, as to the remainder of the redactions and withheld documents, we likewise conclude that the Department has failed to meet its burden of proof to sustain the action. 3 "We therefore have no alternative but to find that the disposition of this request was in violation of the Open Records Act. " 12-ORD-176 (citing 07-ORD-241; 93-ORD-6 (agencies failed to sustain their statutory burden where no exception cited)).
A party aggrieved by this decision may appeal it 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 should not be named as a party in that action or in any subsequent proceedings.
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