Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Martin ("City") violated the Open Records Act in its disposition of Terry Thornsberry's open records requests received by the City on January 22, 2019. For the reasons stated below, we find that the City subverted the intent of the Act short of a denial of inspection of the records.
Terry Thornsberry ("Appellant") delivered an open records request to the City of Martin on January 22, 2019. 1 Appellant's written letter to the City requested numerous records covering a broad range of issues such as a list of employees on the City's payroll, litigation that the City is involved in, the written policy for use of City vehicles, minutes of meetings for the past two years, a "list of all properties and/or individuals sent an intent to annex letter during January, 2019[,]" and other matters. The copy of the records request sent to this office included a hand-written note that the Martin City Attorney responded to the request by telephone on January 26, 2019, but "this was the entire response to [Appellant's] request." Having received no other response to his request, Appellant filed this appeal on February 13, 2019. Appellant supplemented his appeal by providing a letter from the City Clerk, dated February 25, 2019. The letter stated that "Due to the volume of information you are requesting, we are unable to meet the requested date. Please be assured that we are working diligently to get this information to you."
On February 14, 2019, this office sent a copy of Appellant's letter of appeal to the City Mayor and City Attorney. That notification of appeal clearly stated that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal" and that the "response must be received no later than Wednesday, February 20, 2019." By letter faxed to this office on February 20, 2019, the City Attorney requested additional time to respond to the appeal. This office telephonically notified the office of the City Attorney that the request was granted and the City could respond to the appeal no later than Friday, February 22. This office has received no written response to the appeal, other than the request to postpone the response. 2
As a public agency, the City must adhere to both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to requests submitted pursuant to the Act. 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department 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). The Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. 05-ORD-134. 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:
(Emphasis added). 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; see also 93-ORD-134 and authorities cited therein. 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 the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). KRS 61.872(5) dictates that "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 (Emphasis added). To this extent, the City violated KRS 61.872(5).
The City has failed to provide any reasonable or detailed explanation for the delay in honoring Appellant's request, thereby failing to fulfill its obligation under KRS 61.872(5) . The City should take notice of the fundamental principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9. The absence of a detailed explanation for delay and a statement of the earliest date certain for production of the requested records, for well over a month after the request, is a subversion of the intent of the Act short of denial of production of the requested records. The City must immediately make arrangements to produce the requested records to Appellant.
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.
Footnotes
Footnotes
1 Although the request is dated January 24, 2019, Appellant stated, in supplemental correspondence after filing his appeal, that he hand delivered the request on January 22, 2019. The City has not denied that the request was delivered on January 22, 2019.
2 The February 25, 2019, letter from the City Clerk to Appellant indicated that the response had been sent to this office, but this office has not received it.