Opinion
Opinion By: Andy Beshear,Attorney General,Michelle D. Harrison;James M. Herrick,Assistant Attorneys General
Open Records Decision
The question presented in these consolidated appeals is whether the Pike County Clerk violated the Kentucky Open Records Act in the disposition of Roger Ford's four separate requests dated August 16, 20, 22, and 31, 2018. The record on appeal substantiates Mr. Ford's claim that Pike County Clerk Rhonda K. Taylor issued a timely but otherwise deficient response to his August 16, 2018, request per KRS 61.880(1). Because the Clerk's responses to Mr. Ford's four separate appeals confirm that she responded via e-mail in each instance prior to Mr. Ford's initiating his appeal, this office respectfully declines to make any finding on the merits of each appeal, with the exception of the appeal concerning his August 16, 2018, request. See KRS 61.880(2); 40 KAR 1:030, Section 1.
By letter directed to Pike County Clerk Rhonda K. Taylor on August 16, 2018, Mr. Ford sought access to six categories of "financial and accounting information," such as "check images, government forms, court orders, court minutes, and other supporting documents and memoranda," as well as the "complete and accurate set of budget(s)" for each fiscal year from 2014-2015 to the present, all in electronic format. In his August 20, 2018, request, Mr. Ford again requested certain "financial and accounting information," as outlined in forty-eight (48) separate categories of records. On August 22, 2018, Mr. Ford asked for electronic copies of all e-mails and written correspondence to or from the County Clerk since January 1, 2015. His fourth request, dated August 31, 2018, was for all salary and payroll information for all salaried, hourly, and contract employees from fiscal year 2014-15 to the present.
On appeal, the Clerk indicated that she received Mr. Ford's August 16, 2018, request on August 20, 2018; she responded via e-mail dated August 22, 2018, 1 or within three days of receipt, excluding weekends and legal holidays, pursuant to KRS 61.880(1). However, the Clerk's response, notifying Mr. Ford that she was "currently working" on his request and that she would contact him "upon completion with information on price and arrangement for pick up," was otherwise deficient. This response did not contain any objections, invoke any exceptions under the Open Records Act, or provide any explanation for not providing the records within three business days. Furthermore, the record on appeal contains no indication that Mr. Ford has received any records in response to his request.
KRS 61.880(1) requires that a public agency make a final disposition of a request for public records within three days of receipt, excluding weekends and legal holidays. The Clerk did not discharge this obligation by merely notifying Mr. Ford that his request would be fulfilled at some indeterminate time. 01-ORD-140. Nor did the Clerk specify a reason for the delay in producing the requested records. Pursuant to KRS 61.872(5):
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.
(Emphasis added.) Insofar as the Clerk failed to either provide Mr. Ford with access to all existing responsive documents within the statutory timeframe, or cite the applicable statutory exception(s) and explain how it applied to any records being withheld in writing per KRS 61.880(1), she violated the Act.
The Clerk failed, in the alternative, to expressly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date when the documents would be available. See 12-ORD-151; 13-ORD-035. Absent from the initial and supplemental response by the Clerk is any reference to KRS 61.872(5); also lacking is the statutorily required explanation of the cause for delay. If any of the records being sought were "in active use, in storage or not otherwise available," the Clerk failed to specify which of these permissible reasons for delay applied or to what extent. Moreover, "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; 07-ORD-158 (response that agency was "in the process of filling" the request and expected to fill it "within the next two weeks" did not suffice); 08-ORD-006 (agency's response advising that it would be "a couple of weeks" before it could "get the copies together" without further explanation violated KRS 61.872(5)). Since no place, time, or date, certain or uncertain, has been designated, the Clerk has failed to satisfy the requirements of KRS 61.872(5).
While this appeal was pending, it came to our attention that, with regard to his August 20, 22, and 31 requests, Mr. Ford has not perfected the appeals. The Clerk has demonstrated that she issued an e-mailed response to each request. In each instance, the Clerk's response was, in relevant part, similar to her e-mailed response to Mr. Ford's August 16, 2018, request summarized above.
Although the Attorney General is statutorily charged with the duty to resolve disputes concerning access to public records under KRS 61.880(2), it is incumbent on the complaining party to provide the Attorney General with both his or her written request and the agency's written response, if any. KRS 61.880(2)(a) therefore provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request.
(Emphasis added.) This is the record upon which the Attorney General relies in reviewing the actions of the public agency. Pursuant to 40 KAR 1:030, Section 1, "[t]he Attorney General shall not consider a complaint that fails to conform to. . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
By exercising his appeal rights and asserting that he did not receive "any documentation" or "any explanation" for the Clerk's "failure" to comply with requirements of the Open Records Act, Mr. Ford necessarily argues that her written responses either were tantamount to a denial of inspection or subverted the intent of the Act under KRS 61.880(4). Accordingly, those responses must be treated as the "written response [s] denying inspection, " which are essential to establish our jurisdiction under KRS 61.880(2). In the absence of the statutorily required documentation, this office must conclude that Mr. Ford's appeals of his August 20, 22, and 31 requests are unperfected. Since the Attorney General is precluded from adjudicating those complaints, this office returns them to Mr. Ford, along with their attachments.
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 proceedings.
Footnotes
Footnotes
1 In his requests, Mr. Ford provided his e-mail address and indicated that the Clerk should "feel free" to contact him by that method.