Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Lexington-Fayette Urban County Housing Authority (the "Housing Authority") violated the Open Records Act (the "Act") in its disposition of Brad Schmidt's request for radon testing results of public housing. For the reasons stated below, we find that the Housing Authority violated the Act, both substantively and procedurally, in responding to the request.
By email 1 dated August 2, 2018, Brad Schmidt, the Oregonian , requested "an electronic copy" of "[a]ll radon testing results of public housing conducted by or for the Housing Authority of Lexington." The Housing Authority answered on August 7, 2018, by email, stating, in relevant part, that the "information requested is currently not accessible as it is stored at an off-site facility[,]" and that "[t]he Housing Authority anticipates having the information located and copied by September 30, 2018." Mr. Schmidt appealed that response to this office on August 8, 2018, complaining that the delay in producing the records was excessive and that the Housing Authority did not provide a detailed explanation for the delay.
On appeal, Kimberly J. O'Donnell, attorney, responded on behalf of the Housing Authority, stating that the initial response complied with KRS 61.872(5), which states:
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.
Ms. O'Donnell explained the reason for the delay:
The records sought by Schmidt are potentially quite voluminous and the request is completely unrestricted in time or location. The two hundred seventy (270) ground floor units that were tested for radon are located within six separate Low-Income Housing Tax Credit redevelopments. The radon testing paperwork is contained within the two to four storage boxes of construction documents for each redevelopment project, which will amount to a total of between twelve and twenty-four boxes of documents that the Housing Authority will need to retrieve from Kentucky Underground Storage and examine. The Housing Authority will then have to go through each box of files to locate the radon documents, because those documents are not kept in a separate file.
Analysis . As a public agency, the Housing Authority is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for agency responses to requests made thereunder. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall 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.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Dep't of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the agency's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3 . . . .
01-ORD-140, pp. 3-4; 06-ORD-147; 07-ORD-179; 10-ORD-201.
Here, the Housing Authority issued a written response within three business days per KRS 61.880(1), but did not expressly invoke KRS 61.872(5) in its initial response, and initially failed to provide a detailed explanation for the delay. The Housing Authority initially stated that the records were not "currently accessible" as they were "stored at an off-site facility." This perfunctory explanation did not contain the detailed explanation contemplated by KRS 61.872(5). "The mere statement that records [are] 'in use' or 'in storage' does not constitute a 'detailed explanation of the cause for further delay.' If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless." 14-ORD-178.
The Housing Authority's failure to comply with KRS 61.872(5) constitutes a procedural violation of the Open Records Act. The Housing Authority somewhat rectified this deficiency on appeal by more fully explaining that the records were at Kentucky Underground Storage and describing the number of boxes that would have to be searched (between 12 and 24 boxes) to locate the requested records.
We next turn to the substantive issue of whether the anticipated 54-day delay in producing the records was reasonable. In OAG 92-117, we noted that "[t]he Open Records Act does not prescribe a reasonable time within which a requester must be afforded access to public records [.]" Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. We have also noted "that a determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 05-ORD-099. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
The Housing Authority, on appeal, cited 14-ORD-178 as support for its delay in providing the requested records. In that decision, we determined that the Kentucky State Police articulated a sufficiently detailed explanation to justify an 11-day delay in providing the requested records. In this appeal, the Housing Authority has provided few details regarding the storage location, the number of records, the length of the retention period, or the difficulty in retrieving the records. The Housing Authority has stated that the records are for 270 ground floor units tested for radon within six separate Low-Income Housing Tax Credit redevelopments, and that these records are contained in 12 to 24 boxes located at Kentucky Underground Storage. No details were provided as to how long it would take to retrieve the records, how many agency employees would be available to search the boxes, how many hours per day agency employees would be able to search for records, or the number of documents in each box. Under these circumstances, where the records are located in no more than 24 boxes, and knowing little else regarding the factors involved in retrieving the requested records, the Housing Authority cannot be said to have met its burden of proof in delaying production by 54 days beyond the three business days allowed by KRS 61.880(1). 2 This delay thus subverts the intent of the Open Records Act by unreasonably delaying access to the requested records. See 10-ORD-138 (Cabinet for Health and Family Services, "without adequate explanation for the delay pursuant to KRS 61.872(5)," subverted the intent of the Act in delaying access to personnel file of employee for more than two months); 13-ORD-004; 13-ORD-053; 14-ORD-040. It is incumbent on the Housing Authority to make immediate arrangements for Appellant to obtain copies of the requested records.
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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