Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision The question presented in this appeal is whether the Finance and Administration Cabinet ("Cabinet") violated the Open Records Act and subverted the intent of the Act, short of denial of the records, and within the meaning of KRS 61.880(4), 1 in the disposition of a request for records submitted by Adrienne Southworth. For the forgoing reasons, we find that the Cabinet violated the Act, and subverted the intent of the Act.
On Sunday, February 10, 2019, Appellant submitted an open records request, by email, on a form designated by the Cabinet. Appellant requested copies of public records she described as follows:
Any Personnel Cabinet Authorization Signature Forms or similar forms originating anywhere and designating appointing authority to Troy Robinson of the Finance Administration Cabinet.
Any Personnel Cabinet Authorization Signature Forms or similar forms originating with Governor Matt Bevin and designating his appointing authority to another person.
Appellant marked the "[e]lectronic (email) if responsive material is less than 5MB (free)" indicating that she wanted electronic copies of the records as offered by the Cabinet. Appellant provided an email address for delivery of the responsive records. The request form shows that Appellant resides outside of the county in which the records are located.
On February 15, 2019, Cabinet Open Records Specialist Traci Walker issued a response to the request that was untimely by one business day pursuant to KRS 61.880(1). The response further delayed Appellant's access by setting a future date for onsite inspection of the responsive records. The response stated:
I have the documents you requested and they can be viewed on Monday February 18, 2019 anytime between 9:00 am and noon. Please advise on the time that will work best for you to come to our office to review them. We are located in room 183 of the Capital Annex. Should you wish to make copies of the documents there will be a charge of 10 cents per page.
The Cabinet's response did not advise Appellant of the number of responsive records available for copying. The Cabinet delivered its written response to Appellant by the email address she provided on the request form.
On February 20, 2019, Appellant appealed the disposition of her requests. Appellant argued that the Cabinet subverted the intent of the Act "by delay after delay in addition to strange limits on inspection of records." Appellant argued that she did not request an onsite inspection of the records, but if she had "one day for a 3-hour window was more limited than. . .required by law." Appellant also argued that the Cabinet violated the Act by failing to advise her of the number of responsive pages, so that she could properly prepare for the copying cost.
The Cabinet responded to the appeal arguing that it is now moot, pursuant to 40 KAR 1:030, Section 6. 2 Specifically, the Cabinet argues that Appellant attended the onsite inspection appointment and made photographic copies of the responsive records. On February 28, 2019, our office requested copies of the responsive records for in camera review to substantiate the disclosure of the responsive records. The request was made pursuant to KRS 61.880(2)(c) 3 and 40 KAR 1:030, Section 3. 4 On March 4, 2019, Cabinet Staff Attorney Cary B. Bishop responded to our request and provided copies of the responsive records. The responsive records consisted of two pages.
The Act requires that this office consider Appellant's argument that the Cabinet subverted the intent of the Act within the meaning of KRS 61.880(4). The Cabinet argues that it did not deny Appellant access to responsive records. However, the statute requires that we adjudicate a complaint alleging subversion of the Act as if the records had been denied. See KRS 61.880(4); 15-ORD-198; 18-ORD-241. Accordingly, we decline to find that the appeal is moot.
The Cabinet violated the Act by failing to issue a timely response to the request. The written response was issued one business day late, which is a violation of the time requirement stated in KRS 61.880(1). As a public agency, the Cabinet is required to comply with procedural and substantive provisions of the Act. Specifically, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6; 01-ORD-140; 06-ORD-147; 10-ORD-201; 11-ORD-035. "The value of information is partly a function of time." Fiduccia v. U.S. Dep't of Justice , 185 F. d, 1035, 1041 (9th Cir. 1999); 01-ORD-140. For this reason, the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-206.
The Cabinet further violated the Act by failing to properly delay Appellant's access to the responsive records. The only provision that authorizes postponement of access beyond three working days, KSR 61.872(5), provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency " 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). Accordingly, the Cabinet violated the Act by failing to expressly invoke KRS 61.872(5) , and by failing to provide Appellant a detailed explanation of the cause for delay.
On appeal, the Cabinet explained the delay and attributed it to an unavoidable absence of the designated custodian of records. However, a public agency is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 10-ORD-199. A "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests" in his absence); 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff"); 94-ORD-86; 15-ORD-174; 16-ORD-279; 17-ORD-105. Because the Cabinet issued an untimely written response in violation of KRS 61.880(1), failed to provide a legitimate detailed explanation of the cause for delay as required by KRS 61.872(5), and evidence that the responsive records only consist of two pages, we find that the Cabinet's delay was unwarranted.
The Cabinet also violated KRS 61.872(3)(b) by requiring Appellant to inspect the responsive records onsite. The Cabinet argues that it did not err because Appellant attended the appointment and was able to make photographic copies with her cell phone. We disagree. In 01-ORD-75, the Campbell County Fire District made a similar argument, stating that it had no legal obligation to mail a requester copies until he had conducted an on-site inspection of those records. The Attorney General held that the Campbell Fire District "must honor a request for copies of precisely described public records that are readily available within the districts' offices if [requester] resides, or has his principal place of business, outside Campbell County, and if he pre-pays a reasonable copying charge[.]" 01-ORD-75, p. 6. (Emphasis added).
The reasoning of 01-ORD-75 applies to this case, wherein the Attorney General held:
KRS 61.872(3)(a) and (b) states:
(3) A person may inspect the public records:
In construing KRS 61.872(3)(a) and (b), the Attorney General has observed:
The statute . . . contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail . . . . [w]e believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records . . . . Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. [But] a requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely the records and they are readily available within the agency.
96-ORD-186, p. 3; see also, 97-ORD-3; 99-ORD-63; 99-ORD-67. [A requester who both lives and works in the county where the records are maintained], falls within the former category, and can be required to conduct an on-site inspection as a precondition to receipt of copies. (Footnote omitted.)
01-ORD-75, p. 4-5 (quoting 00-ORD-211, p. 4-6; 01-ORD-8).
In this case, Appellant "precisely describe(d) the public records which are readily available within the public agency" as contemplated by KRS 61.872(3)(b). Appellant is not a person who "both lives and works in the same county where the public records are located," and therefore could not "be required to inspect the records prior to receiving copies." See 96-ORD-186, p. 3. Accordingly, we find that Appellant could properly require the Cabinet to mail copies upon receipt of all fees and costs of mailing. 01-ORD-75, p. 6. Following 01-ORD-75, the Cabinet violated the Act when it required Appellant to submit to an onsite inspection of the responsive records. The Cabinet violated KRS 61.872(3)(b) when it failed to inform Appellant "of all fees and the cost of mailing" in its written response. The fact that Appellant eventually made copies with her own device did not alleviate the Cabinet of the duty to disclose copying fees and mailing costs under KRS 61.872(3)(b).
The Cabinet violated KRS 61.875(2)(a) by failing to email electronic copies of the responsive records as Appellant requested. KRS 61.874(2)(a) provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
(Emphasis added.) In construing this provision, the Attorney General has repeatedly determined that "if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6. We recognized that the obvious corollary of this position is that if the nonexempt records exist in only standard hard copy format, the agency must permit inspection of, and copying in, that format. See 09-ORD-092, p. 3. KRS 61.874(2)(a) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. " Id. Unless the requested records exist only in hard copy format, discretion rests with the requester, and not the agency, to determine whether copies are to be provided in electronic or hard copy format.
Appellant specifically requested copies of the public records in electronic format. The Cabinet presents no evidence that it was unable to honor Appellant's request. Further, there is no evidence that the two pages of requested records exist only in hard copy format. As such, the Act gave Appellant the discretion to receive the responsive records in electronic or hard copy format. Further, the Cabinet cannot impose a copying fee for paper copies of electronic records requested in electronic format. See 14-ORD-148 (agency "cannot impose a ten cents per page copying fee for paper copies of electronic records requested in electronic format. ") Accordingly, the Cabinet violated the Act when it denied Appellant's request for emailed electronic copies and required her to access the records in hard copy format.
We find that the culmination of these errors subverted the intent of the Act within the meaning of KRS 61.880(4). The Cabinet violated the procedural requirements of the Act stated in KRS 61.880(1) and KRS 61.872(5). However, the Cabinet also violated KRS 61.872(3)(b) by requiring Appellant to travel from her home county to review and receive copies of only two pages of responsive records, to which the Act provides her the right to receive electronically, per KRS 61.874(2)(a). Our office has applied subversion of the intent of the Act typically in instances in which the public agency generally complied with the Open Records Act, but nonetheless utilized other procedures or tactics which subverted the stated policy of public access in KRS 61.871. See generally 10-ORD-022 ("Each agency complied with his request . . . The sole question presented here is whether the City and the Board subverted the intent of the Act . . ."); 17-ORD-007 (listing circumstances in which agencies subverted the intent of the Open Records Act) . The record in this appeal supports such a finding.
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 KRS 61.880(4) states, "[i]f a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
2 40 KAR 1:030 Section 6 states: "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 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
4 40 KAR 1:030 Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."