Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Worthington Hills ("City") violated the Open Records Act in its disposition of an open records request submitted by Harold Hill ("Appellant"). For reasons stated herein, we find that the City violated KRS 61.880(1) 1 when it failed to respond to the open records request within three (3) days. The City further violated KRS 61.880(1) when it failed to affirm or deny whether a certificate of insurance or additional responsive invoices existed, and affirmatively so indicate. The City violated KRS 61.872(5) 2 by failing to provide the requester a legitimate detailed explanation for the cause for the delay in responding and failing to provide a specific date when the records would be available.
On June 4, 2018, Appellant submitted an open records request to the City seeking the following:
1. Copies of all Invoices paid for mowing the City of Worthington Hills Green Space - Specifically for the calendar year of 2016 and 2017.
2. Current copy of the property maintenance contractor Certificate of Insurance.
On June 25, 2018, Appellant submitted an appeal with this office. Appellant requested review of the matter stating, "I have not received any reply."
On July 10, 2018, City Attorney Stephen A. Schwager submitted a response on behalf of the City. Mr. Schwager indicated that the City Clerk "has been inundated by other requests." On July 11, 2018, this office was copied on an emailed response from the City Clerk. The response provided copies of invoices for law services. On July 15, 2018, Appellant contacted this office to confirm that he had received records from the City Clerk. However, Appellant stated that "I have received fiscal year 2016 and fiscal year 2017 invoices" and "[t]hat leaves me short the first six months of 2016." Appellant also stated "I have not received a copy of the contractor's certificate of insurance, nor have I received any correspondence concerning whether this would happen."
The City violated the Act when it failed to issue a timely written response to Appellant's request. Specifically, KRS 61.880(1) dictates the procedure that a public agency must follow when responding to written requests made under the Act. In relevant part, the statute provides that upon receipt of a request, a public agency 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." The City did not issue a written response until after it received notice of Appellant's appeal. This disposition of Appellant's request for records was not timely and failed to meet the requirements stated in KRS 61.880(1).
Understanding that the City Clerk may have been processing a large number of requests for records, the City continued to have a duty to comply with the Act. The City is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 10-ORD-199. Notwithstanding any challenges impeding the ability to comply, 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); 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff"). While a minimal extension of time may have been justified on the facts presented, it was incumbent on the City, "as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests. " 01-ORD-140, p. 3.
The City further violated KRS 61.880(1) when it failed to ascertain whether the certification of insurance and any additional responsive invoices existed. KRS 61.880(1) required the City to ascertain whether records exist that were responsive to Appellant's request, and then promptly advise him of their findings, and to release all existing nonexempt records identified for the request. See 18-ORD-156 (finding that the Graves County Jail violated KRS 61.880(1) in failing to either confirm or deny the existence of recordings responsive to an open records request). The City violated the Act in failing to confirm or deny the existence of a certification of insurance. The City also failed to determine whether additional invoices existed and, if not, offer Appellant an explanation why. See 09-ORD-150 (agency violated the Act in failing to provide a "sufficiently detailed response affirmatively indicating whether [it] possesses any responsive [documents] and specifying which of those records, if any, to which access is being denied"). The City did not correct these omissions during the appeal.
In addressing the obligations of a public agency when denying access to public records based on their nonexistence or the agency's lack of possession, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient ." 02-ORD-144, p. 3 (emphasis added); 03-ORD-212; 09-ORD-145. In other words, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 00-ORD-82. Thus, a public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that records being sought do not exist following a reasonable search, and explaining why. 98-ORD-154, p. 2 (citing 97-ORD-161, p. 3). Accordingly, the City violated KRS 61.880(1) when it failed to determine whether a certification of insurance or additional responsive invoices existed and provide written notice to Appellant.
The City violated the Act when it did not expressly invoke KRS 61.872(5), and provide a detailed explanation of the cause for delay and the earliest date upon which records would be made available. The City failed to issue an initial written response to Appellant's request for records. However, its supplemental response was deficient in that it failed to properly invoke KRS 61.872(5) and meet its requirements. Appellant was not informed whether the requested records were "in active use, in storage, or otherwise unavailable," and he was not provided "a detailed explanation of the cause. . .for further delay and the place, time, and earliest date on which the public record will be available for inspection. " As such, the City committed an additional procedural violation of the Act.
A party aggrieved by this decision shall 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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