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 Grant County Fiscal Court subverted the intent of the Open Records Act, short of a denial of inspection of records, within the meaning of KRS 61.880(4), in the disposition of two requests from Ben S. Wilson. For the reasons that follow, we find that the fiscal court's delay in producing records subverted the intent of the Act.
On April 24, 2017, Mr. Wilson submitted requests to the Grant County Fiscal Court for "[c]opies of every e-mail sent and received by" County Judge/Executive Steve Wood and Magistrate Shawna Coldiron during March and April 2017. The next day, Grant County Attorney Joe Taylor1 replied by e-mail:
I have forwarded the request to our Technician who should be here tomorrow. I James [ sic ] can get the information loaded onto my external hard drive, I can try to get started on the request this weekend, but I will have a better handle on the timeline after I see the volume of messages.
The following day, April 26, 2017, Mr. Taylor indicated that he had forgotten about a prior request from one Thomas Doyle (which encompassed over 6,000 e-mails of a former employee and all e-mails among all magistrates over another two-month period). He stated:
? I haven't loaded the Magistrates emails onto Outlook yet to see how many they have. One of my Assistants is leaving for a much better paying job at the end of the month, and I will have to carry his usual workload as well as my own while my new Assistant shadows me for about a month. ? I made a (hopefully) conservative estimate that I could squeeze in enough hours to finish [Mr. Doyle's] request by the end of May; however, I am hoping to get finished with his and get started on yours sooner than that. Based on how quickly it went last time, once I figured out how to copy the appropriate messages to a new folder, once I can get to them, I am hoping to get yours done over a weekend.
On June 1, 2017, having still not received the requested records, Mr. Wilson initiated this appeal.
Mr. Taylor responded to Mr. Wilson's appeal on June 8, 2017, citing the fact that he had spent 26 hours fulfilling the request from Mr. Doyle, followed by four hours on Saturday, June 3, to start on Mr. Wilson's request. He stated additionally:
[D]ue to the ongoing explosion of heroin in our community and other issues, I have been averaging over 70 hours per week for the last two years, and including the occasional day off on a holiday or weekend, I have had a total of 33 days off in the last 2 1/2 years. It is difficult for me to work in the time to sort through thousands of emails to complete a given request of the scope of those submitted by Mr. Doyle and Mr. Wilson. ?
?
As Mr. Wilson is well aware, it took me scores of hours to complete the response to his previous request; however, in the process of working through the absence of our Technician due to heart surgery, we developed a system where I am able to use Outlook to review the emails that have been saved in pst files. My Assistant does not have Outlook, so this leaves it to me to review the requested emails for privileged material. Considering my schedule and my commitment to 24,000+ residents of my County, I would submit that I have been getting to Mr. Wilson's requests in a very reasonable time. Since Mr. Wilson has refused to narrow the scope of his requests or come to my office to go through the files with me, I will continue to get to the records in as timely a fashion as I can. Although I may be able to make it through in a long weekend, based on the 4.0 hours that it took me to get through Steve Wood's In Box, I am hoping to get through the remainder of the request within another month.
I have not denied Mr. Wilson's request; I have just not foregone my other responsibilities to put him at the front of the line of my obligations in order to get the response to him in the unreasonable time that he would prefer.
We note that Mr. Wilson's office is located in Gallatin County; accordingly, his unwillingness to review the e-mails on site is not an issue under KRS 61.872(3)(b).2
KRS 61.880(1) requires a public agency receiving an open records request to "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." Where records are not readily available, KRS 61.872(5) provides:
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.
Although the county attorney has given some explanation of the reason for delay, he has not represented that any records were "in active use, in storage or not otherwise available." Furthermore, Mr. Wilson has not been given a definite date by which the records will be provided. "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).
Essentially the county attorney argues, on behalf of the fiscal court, that the time frames imposed by the Open Records Act are "unreasonable" because the records are voluminous; the e-mails must be reviewed for "privileged material" ; there are other open records requests pending; and the county attorney has many other duties that require attention. Apparently no records were provided to Mr. Wilson before June 28, 2017.
Our past decisions have recognized that persons making broad requests for large volumes of e-mail or other records "cannot reasonably expect agencies ? to produce all responsive records within the three day deadline" imposed by KRS 61.880(1), and "[a]pplicants are therefore urged to frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production." 12-ORD-228 (need to review 249,504 e-mails justified six-month delay in providing access). In 12-ORD-097, we found that an agency's need to review 22,117 records constituted "extreme circumstances" that justified a delay of six months in producing the records. We stated, however, that this constituted "the outermost limit of acceptable delay."3
In this case, we have no indication that the volume of records in response to Mr. Wilson's requests is nearly that high; the only figure we have been given is a reference to the probability of "several thousand emails. " For a request made on April 24, 2017, to be fulfilled more than two months later requires more specific justification than this. While a reasonable delay might be acceptable upon a proper showing, we do not find the delay in this case to have been justified based on the vague statements made by the fiscal court.
Furthermore, the possible presence of "privileged material" in the e-mails provides, by itself, no justification for the fiscal court's delay. "[I]n light of the fact that the General Assembly has already mandated that all public agencies ? must separate materials exempted from disclosure in a document from materials that are subject to disclosure," it is an "obvious fact that complying with an open records request will consume both time and manpower." Com. v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008). "The 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.
"Nor do 'irrelevant factors, including the volume and nature of unrelated requests,' constitute legitimate reasons for delay." 17-ORD-082 (quoting 16-ORD-272). It is to be expected that a public agency will, at times, have to deal with simultaneous open records requests from different parties. Likewise, the many other duties of the county attorney, while of course important, are irrelevant to the fiscal court's obligations under the Open Records Act.
The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4)4 and (5). ?
?
? This office has previously held that the press of business ? does not justify an untimely delay in providing public records . 96-ORD-238. A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act.
99-ORD-222 (emphasis added).
"It is incumbent on the [Grant] County Fiscal Court, as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests. ? The failure to have an individual available to timely process open records requests [is] inconsistent with the requirements of the Open Records Act. " 04-ORD-008 (emphasis added). Based on the representations made by Mr. Taylor, it is possible that the designation of an already-overburdened county attorney as official custodian of the Grant County Fiscal Court's records may have rendered timely compliance with the Open Records Act in many cases impracticable.
Nevertheless, it is ultimately the Fiscal Court's responsibility to make public records timely available. A public agency's own "inefficiency [must not] thwart an otherwise proper open records request." Chestnut, supra, 250 S.W.3d at 666. Therefore, we find the disposition of Mr. Wilson's requests to have been untimely in violation of KRS 61.880(1), and further find that the excessive delay subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4). Cf . 15-ORD-181.
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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