Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in its disposition of Tyler Fryman's request for records relating to the KSP's budget, and an electronic copy of the Uniform Citation File database. For the reasons stated below, we find that KSP violated the Act by failing to provide timely access to the records requested.
By letter dated June 5, 2018, Tyler Fryman ("Appellant"), requested the following records:
(A) The previous five and current [financial] year's budget.
(B) Accounts payable database that includes all transactions for the [financial] years in item "A".
(C) On or around Jan 17, 2018 Commissioner Rick Sanders made the comment that " he and his budget experts will discuss how to adjust to the nearly $ 20 million shortfall in requested personnel funds, if lawmakers stick with the governor's recommendation ." I would like all non-exempt documents for the final action taken in regards to their recommendation (including, but not limited to, any document, presentation, spreadsheet, or email) .
(D) Any and all documents used in the making of the final action taken or decision to take no action in item "C".
(E) All non-exempt emails to and from Commissioner Sanders that include "budget" within the message text from his date of hire to 6/5/2018.
(F) All non-exempt text messages to and from Commissioner Sanders that include "budget" within the message text from his date of hire to 6/5/2018.
(G) In 19-ORD-078 the Kentucky Attorney General Office ruled KSP must produce "[a]n electronic copy of the Uniform Citation File database and all its publicly available fields "; I would like an electronic copy of said database.
On June 8, 2018, KSP responded to the request, stating:
Due to the storage location of this file, the records are not immediately available, However, I have requested a copy of the records be forwarded to this office. The information will be released to you, to the extent required under the Kentucky Open Records Act, upon completion of the review. The records or a letter stating the status of your request should be mailed to you on or before July 8, 2018.
Appellant filed his appeal by letter dated July 12, 2018, claiming that KSP's response violated KRS 61.872(5), and that he had not received the records despite KSP's commitment to produce the records by July 8, 2018. By letter dated July 11, 2018, KSP reiterated that the records were not immediately available due to the storage location of the records, and stated that "[t]he records or a letter stating the status of your request should be mailed to you on or before August 11, 2018."
Cody Weber, staff attorney, responded to the appeal on behalf of KSP on July 19, 2018. Mr. Weber explained that KSP did not have the records available due to staff turnover and the storage location of the records, but would produce the requested records, to the extent required under the Kentucky Open Records Act, by August 11, 2018.
KRS 61.880(1) provides that "each public agency, upon any request for records . . . shall determine within three (3) days . . . 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." KRS 61.872(5) is "the only provision in the Act that authorizes postponement of access to public records beyond three business days." 12-ORD-151. 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 KSP responded within three business days, it did not give a detailed explanation of the cause for further delay, stating only that "[d]ue to the storage location of this file, the records are not immediately available." KRS 61.872(5) "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmonson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. ; 01-ORD-183, pp. 2-3. Merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause . . . for further delay." 15-ORD-029, p. 2. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.' Lexington-Fayette Urban Cnty. Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3.
KSP also did not specify the place, time, and earliest date on which the public records will be available for inspection; stating instead that "the records or a letter stating the status of your request should be mailed to you on or before July 8, 2018." (Emphasis added). 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. 01-ORD-38, p. 7. KSP compounded its error by failing to comply with its own deadline of July 8, and instead, sending a status update on July 11, 2018. The letter of July 11 also failed to specifically invoke KRS 61.872(5).
In the absence of a legitimate detailed explanation of the cause for delaying access for over two months (assuming KSP meets its August 11 deadline) , and failing to commit to the place, time, and earliest date on which the public records would be available for inspection, KSP violated the Open Records Act. Appellant "did not receive 'timely access' to the records eventually provided." 13-ORD-052, pp. 6-7; 15-ORD-141. 1
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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