Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Paducah ("City") subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), in failing to provide Matthew Roberts with timely access to all existing documents responsive to his May 10, 2019, requests for various personnel and operational records. 1 In accordance with existing legal authority, this office finds the City violated the Open Records Act from a procedural standpoint in failing to properly invoke KRS 61.872(5) if appropriate, by providing a sufficiently detailed explanation of the cause for delaying access to existing responsive documents. The City also subverted the intent of the Act, short of denial and within the meaning of KRS 61.880(4), by failing to provide the requester with timely access to records it ultimately provided.
In a timely but otherwise deficient written response per KRS 61.880(1), City Attorney Stacey A. Blankenship stated that Mr. Roberts had "requested a voluminous amount of records, encompassing thousands of pages. Consequently, it will take the City several days to pull these records and determine exactly how many pages your request encompasses." She indicated that she would provide him with "the total number of pages and charge ($ .10 per page) by no later than Friday, May 24, 2019. Redacted copies will be made available once we receive payment from you." By letter dated May 24, 2019, a copy of which Ms. Blankenship attached to her appeal response, she notified Mr. Roberts that the City had completed its compilation of the records that he requested and the "page number totals 917 pages." She informed him that he could pick up the requested copies at her office upon payment of the $ 91.70 fee. On appeal, the City argued that Mr. Roberts' complaint regarding timeliness is meritless because it "explained the cause for delay (voluminous number of pages) and provided a date certain" by which Mr. Roberts would "hear back about his request." Based upon the following, this office disagrees.
In relevant part, 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. The City's May 13, 2019, response to Mr. Roberts' May 10, 2019, requests was timely under KRS 61.880(1) but otherwise deficient as the City failed to either provide Mr. Roberts with access to all existing responsive documents within that period of time or cite the applicable statutory exception(s) and explain how it applied to any records being withheld. The City failed, in the alternative, to properly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), by citing that provision and providing not only a specific date by which documents would be made available, but also a detailed explanation of the cause for delay in producing any existing responsive documents. See 10-ORD-138; 12-ORD-151; 13-ORD-035; 16-ORD-153; 17-ORD-192.
"The 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); 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-153. KRS 61.872(5) supports this position, authorizing postponement of access to public records beyond three business days only "[i]f the public record is in active use, in storage or not otherwise available." Under those circumstances, "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. " KRS 61.872(5); 01-ORD-140. "[T]he 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.'" 01-ORD-140, p. 4 (citing OAG-92-117). "Only if the parameters of a request are broad," this office reasoned, "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.' . . ." Id. (Citation omitted). 01-ORD-140, p. 4; 07-ORD-179; 14-ORD-026; 16-ORD-153.
Even assuming that some of the records requested were "in active use, in storage or not otherwise available," the City did not identify which of these permissible reasons for delay applied, if any. See 12-ORD-211; 13-ORD-074. Rather, both initially and on appeal, the City relied exclusively on the "voluminous amount of records" implicated, which it significantly overestimated. Requesters asking for a significant volume of records can "not reasonably expect agencies . . . to produce all responsive records within the three day deadline. " 12-ORD-097, p. 6. However, such a request(s) does not relieve the agency of its procedural obligations. See 16-ORD-206; 18-ORD-105. Merely stating that records are "in use" or "in storage, " for example, does not constitute a "detailed explanation of the cause . . . for further delay." 15-ORD-029, p. 2. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.'
Lexington-Fayette Urban Cty. Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3. The record on appeal does not contain evidence to suggest any of the records in dispute were not readily available.
"Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. The need to review and redact did not constitute a detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 02-ORD-217; 10-ORD-138; 12-ORD-227; 14-ORD-047; 16-ORD-206; 18-ORD-105. "In the absence of a legitimate detailed explanation of the cause for delaying access" for approximately two weeks, the Attorney General finds that Mr. Roberts "did not receive 'timely access' to the records eventually provided." 13-ORD-052, pp. 6-7; 15-ORD-141; 16-ORD-206. While a reasonable extension of time may have been justified, the record on appeal is devoid of any facts by which to determine whether a period of two weeks was reasonable under the circumstances. 2 See 16-ORD-272 (record lacked adequate detail for this office to determine whether the length of the delay was justified); 16-ORD-153; 18-ORD-105.
Either party may appeal this decision may appeal 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 In his first of six requests, Mr. Roberts asked for: 1) the personnel file of Mark Thompson; 2) a copy of the contract between the City and "constructing dome and Quilt Show (taxes)"; 3) the contract between the City and "BBQ on River [&] taxes"; and 4) the contract between the City and Peel and Holland. Next, he requested: 1) the "Parks Department bid/contract [with] Crowdus Maintenance LLC (repair fountain), (special events) Years 2017-2018"; 2) the contract between the City and Paducah Tilghman Softball Field; 3) a list of the injuries that occurred from 2017-2019; 4) the [HIPPA] Compliance Ordinance; and 5) the expenses incurred at Oak Grove Cemetery (Gross and Distributed). In his third request, Mr. Roberts requested: 1) Former City Manager Jeff Pederson's employment contract and severance package; and 2) the sick leave pay that City employees receive upon resignation or termination.
In his fourth request, Mr. Roberts asked for: 1) the personnel files of four named employees; and 2) a list of equipment/machinery/trucks/vehicles in the Parks Department. He then requested: 1) "Notes: From Interview Process (R.O.W.) Parks Dept./Maintenance Tech. Position (Parks)"; and 2) "Who, When, [and] Where, did the interview process occur and date and those [sic] interviewed." In his final request, Mr. Roberts asked for: 1) the "2017/2018/2019 [hourly] pay or wages/Positions" for all employees of the Parks Department; and 2) a hard copy of Molly Tomasello's time cards from 2017 and 2018.
2 Because the City did not deny the requests, and has Mr. Roberts challenged any of the redactions made the City made, the nature of which remains unclear, this office has no basis upon which to find the City committed a substantive violation of the Act.