Opinion
Opinion By: Andy Beshear,Attorney General,Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Criminal Justice Training ("DOCJT") violated the Open Records Act in its disposition of Aaron Kidd's March 13, 2019, open records request. We conclude that DOCJT committed a procedural violation when it delayed access to the requested records without adequate explanation or citation.
On March 13, 2019, Appellant submitted an open records request for copies of his official and unofficial DOCJT personnel file, specifically including any "performance evaluation[s], disciplinary action[s], . . . notes, memos, letters, emails, etc. from, but not limited to, co-workers, outside agencies, community partners, etc., that [he is] named, or referenced." Appellant also requested a surveillance video of a training he attended. DOCJT responded that, due to the number of items requested, it would need additional time to fulfill his request and would respond by April 5, 2019. Appellant initiated this appeal on March 17, 2019. On March 29, 2019, DOCJT responded to this office that it had provided the non-exempt requested records. However, by an email to this office dated March 29, 2019, Appellant stated he believed records were missing.
As to the procedural issue of the timeliness of DOCJT's response, KRS 61.880(1) requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days and indicate whether the request will be granted. In construing KRS 61.880(1), the Attorney General has consistently recognized that "[t]he 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). Timeliness is a fundamental premise of the Open Records Act, underscored by the three-day agency response time codified at KRS 61.880(1). The only exception to this three-day requirement is outlined in KRS 61.872(5), which provides:
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.
Additionally, in OAG 92-117, this office held 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." See 19-ORD-042. Only if the parameters of a request are broad, the records implicated contain a mixture of exempt and nonexempt information, or 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. 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). 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; 15-ORD-141.
In DOCJT's March 14, 2019, response to Appellant, the only cursory explanation it provided for the delay in providing the requested records was "due to the number of items requested. " No statutory basis was given and there was no further explanation. DOCJT did not describe the volume of records implicated by these requests, the difficulty in accessing the records, or the problems associated with redacting exempt material from these records. It did not indicate how it searched for the requested records. Further, DOCJT did not cure this deficiency on appeal, but merely stated the delay was "attributed to the number of records requested." Because the burden of proof rests with the agency and DOCJT did not cite the statutory basis for delaying access nor explained how the request was broad, or that the response contained a mixture of exempt and nonexempt information, or that the record was difficult to locate and retrieve, DOCJT subverted the intent of the Act in delaying access for nearly a month. See 15-ORD-141.
Regarding the substantive issue, Appellant asserts all records responsive to his request have not been provided. DOJCT claims that it had provided all responsive records. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2 (citing OAG 89-81, p. 3.).
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
A party aggrieved by this decision may appeal it by initiating an 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.