Request By:
Bob Terrell
Donnie Witt
Greg Meadors
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Donnie Witt and Bob Terrell jointly initiated this Open Records Appeal challenging the failure of the Whitley County Public Library Board ("Board") to issue a timely written response upon receipt of their April 18, 2017, request for the following records:
1. Minutes of all [Board] meetings [from] the past three years;
2. Letters and emails from present and former employees of the Corbin Library to the [Board] and Director requesting meetings or complaining about the Corbin Public Library. All letters and emails from the [Board] and its [D]irector sent to present and former employees of the Corbin Library about complaints against the Corbin Public Library and board and inviting them to meetings.
3. Letters and emails from [the Board] and Director to newspapers providing critical comments about the Corbin Public Library.
4. All letters or emails to and from Jeanna Cornett, State Library Regional Rep, to the [Board] and Director with complaints about the Corbin Library.
In their April 26, 2017, letter of appeal, Mr. Witt and Mr. Terrell advised that Whitley County Public Library Director Greg Meadors confirmed receipt of their April 18 request by the Library on April 19. The appellants did not initially provide this office with a copy of Director Meadors' April 24, 2017, letter but subsequently remedied this deficiency via facsimile transmission dated May 9. 1 Director Meadors advised in his April 24 letter to Mr. Witt and Mr. Terrell that he "was out of the office until Monday April 24," and had just seen their April 18 request upon returning that day; he further indicated that he would send a "letter with further details about filling your request" by April 27. By letter directed to Mr. Witt and Mr. Terrell on that date, Director Meadors agreed to provide the requested copies of minutes of the Board meetings upon receipt of payment in the amount of $ 4.70 (47 pages at $ 0.10 per page) 2 plus the cost of postage; alternatively, Director Meadors offered to provide the records during regular business hours if they preferred to avoid paying for postage. Mr. Terrell subsequently paid for and received the requested copies. Because the Director provided all existing documents responsive to item 1 of the request, any related issues are moot per 40 KAR 1:030 Section 6. 3
In addressing item 2 of the request, Director Meadors, in relevant part, advised:
The Whitley County Public Library does not maintain a list of present and former Corbin Public Library employees. Please provide a list of all of the present and former Corbin Public Library employees, or a list of those employees whose nonexempt communications with the director or the board that you wish to review. Additionally, you will need to provide a range of dates for which you are requesting copies of nonexempt records. As I cannot judge what your criteria for "complaints" or "complaining" against or about the Corbin Public Library [B]oard might be, I will fill your request by providing copies of any requested, nonexempt correspondence, should any exist, that mentions the Corbin Public Library within the requested timeframe.
With regard to items 2 and 3, Director Meadors asked Mr. Witt and Mr. Terrell to provide "additional identifying information" or "precisely describe" the records they requested, citing KRS 61.872. Director Meadors asked Mr. Witt and Mr. Terrell to "specify a range of dates for which you are requesting copies of non-exempt records." Inasmuch as he could not determine what comments might be deemed "critical" of the Corbin Public Library Board, or what might be deemed "complaints," respectively, in both cases Director Meadors advised that he would provide copies of any responsive, "non-exempt records, should any exist that mention the Corbin Public Library within the requested timeframe. " 4
By letter to Director Meadors dated May 4, 2017, Mr. Witt and Mr. Terrell clarified that item 2 of the request was intended to encompass "[a]ll letters and emails from the Whitley County Library Board and its director sent to present and former employees of the Corbin Library about complaints against the Corbin Public Library and board and inviting complaining former Corbin Library employees to Whitley County Board meetings." They also provided the names of two Corbin Library employees to assist in the search. With regard to item 3, they clarified that records being sought included "[l]etters and emails from Whitley County Board and Director to newspapers providing critical comments about the Corbin Public Library," including one sent by Mark White on November 18, 2016. In clarifying the scope of item 4, they asked for "[l]etters or emails to and from Jeanna Cornett, Regional Library Rep, to the Whitley County Library Board and Director with complaints about the Corbin Library."
In his May 9, 2017, appeal response on behalf of the Board, Director Meadors again offered no reason for the initial delay in responding aside from his absence due to a "library conference from Wednesday the 19th through Friday the 21st." Having summarized the procedural history, Director Meadors noted that he spoke briefly with Mr. Terrell regarding the requested clarifications of the request on May 1, 2017, when he picked up the requested minutes. On May 4, 2017, Mr. Terrell delivered a letter providing "more precise descriptions of the records they are requesting [.]" Director Meadors advised that "[w]ith these clarifications, I can compile any applicable records, should any exist," and provide Mr. Witt and Mr. Terrell "with an updated timetable" for providing these records. He provided no further information regarding the status of their April 18, 2017, request until May 18, 2017, when he advised Mr. Witt and Mr. Terrell in writing that he was "continuing to gather the records that specifically fill your open records request and anticipate having them ready by June 1st."
The agency's response(s) satisfied neither KRS 61.880(1) nor KRS 61.872(5). See 14-ORD-226. 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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); 01-ORD-140. For this reason, 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, pp. 3-4. However, applicants making requests for a significant volume of records (unclear here) can "not reasonably expect agencies . . . to produce all responsive records within the three day deadline. " 12-ORD-097, p. 6.
The instant appeal resulted from the Board's failure to issue a timely written response per KRS 61.880(1). Director Meadors' absence did not excuse or mitigate the Board's failure to comply with KRS 61.880(1) (though he did respond within three days after he actually received the request). The Board is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 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 his absence); 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff"); 94-ORD-86. The only provision that authorizes postponement of access to public records beyond three business days, KSR 61.872(5), expressly provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "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. " Assuming that any of the records being sought were "in active use, in storage or not otherwise available," the Board has yet to specify which of these permissible reasons for delay applied or to what extent as required to discharge its duty under the Act. KRS 61.880(2)(c); 16-ORD-233.
Noticeably absent from each response by the Board is any reference to KRS 61.872(5). Equally lacking is the statutorily required explanation of the cause for delay. See 08-ORD-021; 16-ORD-018. Vague reasons for the delay and estimates of how long it will be are insufficient for purposes of complying with KRS 61.872(5). See 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; 08-ORD-006. The need to identify and review documents alone does 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" 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; 12-ORD-043; 13-ORD-168; 14-ORD-047.
The Board also failed to provide a specific date per KRS 61.872(5) until its May 18 supplemental response, at which point it estimated, without explanation, another delay of two weeks. To date the Board has made no attempt to estimate the volume of records implicated or identify the difficulties associated with making necessary redactions, if any; nor has the Board produced any records beyond the minutes requested or confirmed the nonexistence of the records. "In the absence of a legitimate detailed explanation of the cause for delaying access," even after the requested clarifications were provided on May 4, the Attorney General finds that Mr. Witt and Mr. Terrell have not received "timely access" to existing responsive documents. 13-ORD-052, pp. 6-7; 13-ORD-053 (Library Board subverted the intent of the Act in failing to provide timely access to records pertaining to building renovations); 16-ORD-188; 16-ORD-205. Because the Board has not, as of yet, denied access to any records, there is currently no basis upon which to find that a substantive violation has been committed. See 10-ORD-138; 14-ORD-040. 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.
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