Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Newport ("City") violated the Open Records Act in the disposition of Chris Kloeker's ("Appellant's") requests for records. For the reasons stated below, we find that the City violated the Act when it failed to properly delay the production of responsive records. The City further violated the Act when it delayed its response without providing a detailed explanation of the cause for delay and failed to identify the place, time, and earliest date on which the public record will be available for inspection. The City also violated the Act when it failed to produce a nonexcepted audio recording for examination.
On December 28, 2018, Appellant submitted an open records request to the City seeking copies of arrest records related to incidents from 1995 through 1997. On January 7, 2019, City Attorney John Hayden issued a timely response to Appellant's request indicating that providing responsive records would require further delay. Mr. Hayden stated:
"Our Police clerk has done a preliminary search for the file and the found index card for it but not the file itself. She is going to search the archives to see if the file still exists. If the file is discovered, I will be in contact with you."
On January 24, 2019, Appellant appealed this disposition. The City responded by arguing that it had not denied Appellant's request. On February 4, 2019, Mr. Hayden stated, "[t]he Police Clerk is aware of the request and is working diligently to locate [the requested records], however, the documents requested are over 20 years old." Mr. Hayden and Appellant jointly requested additional time to allow the City to complete its response. On February 11, 2019, our office granted the request, but requested copies of the responsive records for additional documentation of the City's response, pursuant to KRS 61.880(2)(b)1. 1
On February 22, 2019, the City produced all of the existing responsive documents in the requested arrest file. Appellant does not raise any issues with that response. Pursuant to 40 KAR 1:030 Section 6, 2 a records dispute is moot if the requested documents are made available after the requester initiates an open records appeal. 11-ORD-189, p. 3. Accordingly, the portion of the appeal related to the documentary requests is moot.
However, the City informed our office that it also possesses a responsive audio recording. Mr. Hayden stated that, due to the nature of the underlying criminal offense, the City needed additional time to redact personal identifying information from the recording, pursuant to the exemption KRS 61.878(1)(a). 3 We reminded the City that our office must issue a decision in this matter pursuant to the time requirements of KRS 61.880(2). The City did not produce the responsive audio recording for Appellant or our office.
We find that the City failed to properly delay its response to the open records request. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to open records requests. 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.
If a response requires more than the mandatory three business days, the public agency is required to specifically invoke KRS 61.872(5), 4 which is the only provision of the Act that authorizes postponing access to public records. See 01-ORD-140, p. 3. The City violated the Act because it did not specifically invoke KRS 61.872(5) in either its initial written response or during the appeal.
The City also violated Act by failing to provide the information required by KRS 61.872(5). KRS 61.872(5) requires 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). Here, the City failed to provide "a detailed explanation of the cause" for further delay. The City attributed the delays to the need to retrieve the requested records from its archives. That explanation, by itself, does not constitute a "detailed explanation," since it "sets forth neither the volume of records involved nor explains, in detail, the problems associated with retrieving the records implicated by the request that would support a. . .delay in providing the requested records." 02-ORD-217. The City noted the great age of the records during the appeal, but that does not address the problems associated with retrieval. The City also violated KRS 61.872(5) because it failed to designate a "place, time, and earliest date on which the public record will be available for inspection. "
With regard to the responsive audio recording, the City violated KRS 61.872(1) when it failed to produce the record. KRS 61.872(1) states in pertinent part that, "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884[.]" The City stated that it was withholding the audio recording because KRS 61.878(1)(a) exempted parts of the record. However, a public agency must not only cite the applicable exception, but also provide a brief explanation of how the exception applies to the record to satisfy its burden of proof under KRS 61.880(2)(c). 5 See 04-ORD-106, p. 6. There is no evidence in the record to support the City's claim of exemption. Even assuming there was evidence to support the claim, the City violated KRS 61.878(4) 6 by failing to release the nonexempt portions of the record. A public agency is not permitted to elect a course of inaction. See 17-ORD-129. Accordingly, the City violated the Act when it failed to produce the audio recording.
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, and failing to produce responsive records for well over a month after being requested, could constitute a subversion of the intent of the Act short of denial of production of 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); 14-ORD-040 (City of Taylorsville both violated KRS 61.872(5) in failing to provide a detailed explanation of the cause for delay and identify a specific date when requested invoices would be produced and subverted the intent of the Act in delaying access for nearly two months). We do not find that the City subverted the Act because there is evidence in the record that it is cooperating with Appellant and expending effort to locate all responsive records. We encourage the parties to continue cooperating in this matter.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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 KRS 61.880(2)(b)1. states: "In unusual circumstances, the Attorney General may extend the twenty (20) day time limit by sending written notice to the complaining party and a copy to the denying agency, setting forth the reasons for the extension, and the day on which a decision is expected to be issued, which shall not exceed an additional thirty (30) work days, excepting Saturdays, Sundays, and legal holidays. As used in this section, 'unusual circumstances' means, but only to the extent reasonably necessary to the proper resolution of an appeal: 1. The need to obtain additional documentation from the agency or a copy of the records involved[.]"
2 40 KAR 1:030 Section 6 states: "Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."
3 KRS 61.878(1)(a) excludes: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
4 KRS 61.872(5) 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."
5 KRS 61.880(2)(c) states in relevant part: "The burden of proof in sustaining the action shall rest with the agency[.]"
6 KRS 61.878(4) states: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."