Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented on appeal is whether Kentucky State Police ("KSP") violated the Open Records Act when it failed to respond to Joy Estes's open records request. For the reasons that follow, we conclude that KSP's delay in allowing access to requested records violated the Open Records Act and constituted a subversion of the intent of the Act.
On January 20, 2019, Appellant submitted a request for records to KSP, requesting "any and all copies of NIBRS reports and citations" for KRS 525.125, KRS 525.130, and KRS 525.135. The request is stamped as received by KSP on January 25, 2019. KSP responded by letter dated February 15, 2019, 1 effectively denying her request, stating it could provide "statistics for these offense types," but not access to the individual records. Appellant initiated this appeal on March 5, 2019.
On March 21, 2019, KSP responded to this appeal, stating that all responsive records have now been provided, except for some responsive records that are part of ongoing investigations. It requested the appeal be mooted.
We first address the procedural issue as to the timeliness of KSP's response. KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. 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." 10-ORD-199 (quoting
Fiduccia v. U.S. Dep't of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999).) See also 08-ORD-043. Timeliness is a fundamental premise of the Open Records Act, underscored by the three-day agency response time codified at KRS 61.880(1). 2 10-ORD-199.
Additionally, 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." See 19-ORD-042. 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. 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 its February 15, 2019, response, and in its response to this appeal, KSP did not provide any statutory basis for the delay in access. Because the burden of proof rests with the agency, KSP subverted the intent of the Act in delaying access to the responsive records because it did not allege that the parameters of a request were broad, it did not allege that the records implicated contain a mixture of exempt and nonexempt information, and it did not allege that the records were difficult to locate and retrieve. 3 See 15-ORD-141.
We next address the substantive issue. This appeal is not moot. 40 KAR 1:030, Section 6 defines mooted complaints as follows: "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." This office has often recognized that an open records appeal is not mooted by partial disclosure of the records identified in the underlying request. Because Appellant received only a portion of the requested documents, the issue on appeal was not mooted. See 11-ORD-189. Accordingly, we find that KSP's delay in access to requested records constituted a subversion of the intent of the Open Records Act.
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 KSP's response was issued more than two weeks from the date it received the request.
2 The only exception to this three-day requirement is outlined in KRS 61.872(5), which holds:
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.
3 KRS 61.880(4) states in relevant part:
If 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.