Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : The Department for Local Government violated the Open Records Act, specifically KRS 61.880(1), by failing to issue a timely written response to a request for a copy of all records pertaining to funding of a specific project; absence of the records custodian is not a legal basis for delaying access to existing responsive documents under KRS 61.872(5) nor is a verbal response sufficient. DLG also violated KRS 61.880(1) by failing to cite the applicable statutory exception and briefly explain how it applied to records withheld in response to amended request, and violated KRS 61.872(4) in failing to refer the requester to different agencies in whose custody some records may reside prior to appeal. Because requester failed to "precisely describe" the records per KRS 61.872(3)(b), DLG was not required to mail copies to him.
Open Records Decision
The question presented in this appeal is whether the Office of the Governor's Department for Local Government ("DLG") violated the Open Records Act in the disposition of Assistant Jefferson County Attorney Peter F. Ervin's April 11, 2019, request "for a copy of all records relating to the distribution or proposed distribution of any funds from the Local Government Economic Assistance Fund to Botanica, Inc., d/b/a Waterfront Botanical Gardens ['Botanica']." Based upon the following, this office finds that DLG violated the Act by failing to issue a timely written response to Mr. Ervin's request per KRS 61.880(1), and further violated that provision by failing to cite the applicable statutory exception it ultimately relied upon to deny his amended request and explain how it applied to records it withheld. DLG did not satisfy the requirements of KRS 61.872(5), the only exception to KRS 61.880(1), nor did it comply with KRS 61.872(4) initially. However, DLG was not required to mail copies of any responsive documents to Mr. Ervin because he did not "precisely describe" the records per KRS 61.872(3)(b).
Mr. Ervin's request was "for all records, including, but not limited to, electronically stored information, emails, memos, cancelled checks or vouchers or other records of transfer of funds." He stated that an e-mail response with any responsive documents attached in electronic format was acceptable. By e-mail dated April 24, 2019, Staff Attorney M. Suzanne Molley, Office of Legal Services, responded on behalf of DLG, advising him to "see the attached copy of the check distributed to Botanica dated April 8, 2019." Later that day, Mr. Ervin confirmed receipt of the check via e-mail directed to Ms. Molley, but clarified that his request was broader than what DLG had provided. Per KRS 61.880(1), he asked DLG to "provide a written response identifying and producing all responsive documents, or representing that the check is the only responsive document, or identifying responsive documents that are being withheld under some statutory exception."
Having received no further correspondence from DLG, on May 1, 2019 (after the close of business), he again requested that DLG supplement its original response to his April 11, 2019, request; Ms. Molley stated that she had sent him the "documents via email, as you requested, on April 24, 2019." DLG did not challenge the specificity of his request or specify the steps taken during a search to identify and locate additional documents; nor did DLG affirmatively indicate that no additional documents existed. Mr. Ervin promptly replied that his request apparently "came across more narrowly than" intended. Accordingly, he submitted a revised version of his April 11, 2019, request via e-mail attachment dated May 1, 2019. He requested a "copy of all records relating to":
1. the decision, method and timing of the April 8, 2019, payment of Jefferson County mineral severance funds to Botanica[;]
2. discussion of the purpose, reason or policy for the selection of Botanica to receive Jefferson County mineral severance funds from the 2018-2010 executive branch biannual budget;
3. discussion of the purpose, reason or policy for the selection of Jefferson County as the only county for which the general application of KRS 42.450 to 42.495 would not apply during the 2018-2020 executive branch biannual budget;
4. legislation concerning the payment of Jefferson County mineral severance funds to Botanica; and
5. any discussion for the purpose, reason or policy of legislation concerning the payment of Jefferson County mineral severance funds to Botanica[.]
Later that day, Ms. Molley stated that she had forwarded to him "all documents in the possession of DLG" responsive to his April 11 request. However, in response to items 1-3 and 5 of his amended request, she asserted without further explanation that, "Any and all documents related to this request are protected by the attorney-client privilege." As to item 4, she observed that he already received "a copy of the legislation" requested in response to his April 26 motion. On May 14, 2019, Mr. Ervin asked Ms. Molley whether DLG had issued any payments to Botanica since April 8 and whether it planned to make any payments prior to a hearing scheduled on April 29. The next day, she advised that DLG did not have any payments to Botanica scheduled prior to May 29; he repeated his first question, but did not receive any response. 1Following the May 29 hearing, DLG sent an e-mail to Mr. Ervin with a photograph of a check made to Botanical Gardens dated April 30, and a letter dated May 6. Referencing the April 30 check, which predated his May 1 request, on appeal the County Attorney's Office persuasively argued it was "evident that some records regarding his request do exist and that a search was not conducted before responding to him."
In her May 31, 2019, letter of appeal, Assistant Jefferson County Attorney Annale R. Taylor challenged the disposition by DLG of Mr. Ervin's April 11 and May 1, 2019, requests. She first noted that its April 24, 2019, response, "sent six days past the statutorily required three-day response time," was untimely. Noting the identical and generic language of DLG's response to items 1-3 and 5 of his May 1 request, she asserted, "no reasonable search in response to the request was conducted. Item 4 was a request for records relating to the legislation, not the actual legislation, so it appears that no search was conducted for that item either." 2(Emphasis added.) She cited prior decisions by this office in support of her position, further arguing that DLG violated the Act by failing to identify the general category of records and explain how the exception that DLG implicitly relied upon applied to all such records per KRS 61.880(1). As to item 4, she maintained that DLG's denial was improper-first, because Mr. Ervin did not ask for the actual legislation and second, because the fact he may have obtained a copy of the record(s) elsewhere is not a legitimate basis for denial unless DLG had already provided him with a copy in response to a duplicative request and it had not. 3
Upon receiving notification of Ms. Taylor's appeal, Ms. Molley supplemented her original responses on behalf of DLG. She first clarified that Ryan Helfenbein, to whom Mr. Ervin directed his April 11, 2019, request, was not the records custodian for DLG at that time nor did he ever serve in that capacity. Nevertheless, Mr. Helfenbein forwarded the request via e-mail at 4:14 p.m. to Greg Ladd, General Counsel for DLG. On Friday, April 12, 2019, Mr. Ladd forwarded the request to DLG's appellate counsel and copied Ms. Molley; she did not receive it until Monday, April 15, 2019. Ms. Molley emphasized that on April 17, 2019, two days after she received the request, she responded via telephone, "leaving him a voice message and notifying him that we were in the process of trying to locate the documents he requested and would try to get back to him by Friday, April 19." This verbal response, according to DLG, complied with KRS 61.880(1) and 61.872(5). In further support of its position, she noted that DLG was in the process of relocating to a different office during the month of April and some records were therefore archived temporarily and the agency experienced technological outages. Notwithstanding these logistical obstacles, none of which it cited in the April 24, 2019, response, or subsequently until Ms. Taylor filed this appeal, the initial response of DLG was procedurally deficient.
Compliance with KRS 61.872(4), 61.872(5), and 61.880(1)
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 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; 16-ORD-206. 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 only provision that authorizes postponement of access beyond three business days, KRS 61.872(5), expressly 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."
Even assuming that some or all of the records being sought were "in active use, in storage or not otherwise available," DLG did not identify which of these permissible reasons for delay applied, if any, or to what extent. See 12-ORD-211; 13-ORD-074; 15-ORD-174. 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. In addition, "[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; 10-ORD-138; 12-ORD-227; 14-ORD-047; 16-ORD-206.
On appeal, DLG partially relied upon the fact it was in the process of relocating in April to justify the delay. However, there is no indication that DLG explained as much in writing to Mr. Ervin prior to its appeal response and the record lacks adequate information to determine whether the associated logistical obstacles explain the delay in its entirety. 4"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. Additionally, "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection." 01-ORD-38. Here, DLG stated it would "try to get back to" Mr. Ervin by April 19, but sent its final response, including the check, the only document initially provided, on April 24.
In addition, KRS 61.872(4) provides, "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." This office has recognized that "it is incumbent on the [public agency] to make reasonable efforts to ensure that an employee who receives a misdirected open records request immediately forwards that request to the agency's official custodian for timely processing, or at a minimum notifies the requester and 'furnish[es] the name and location of the custodian of the public record.' KRS 61.872(4)." 03-ORD-032, p. 2 (emphasis added); 12-ORD-153 (following
Baker v. Jones , 199 S.W.3d 749, 752 (Ky. App. 2006)). Mr. Helfenbein's action upon receipt of the request was consistent with KRS 61.872(4); the additional delay in processing the request was contrary to existing legal authority.
There is "nothing wrong with [DLG's apparent] policy of processing open records requests through its legal department. . . . This policy ensures uniformity and adherence to the law. . . . However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4; 11-ORD-029 (unavailability of attorney to "'review the final record release'" was "legally unsupportable"); 10-ORD-151; 12-ORD-128; 15-ORD-174. Even assuming that DLG is not deemed to have received Mr. Ervin's April 11, 2019, request until April 12, 2019, because his misdirection of the request was partially responsible for the initial delay; it was not forwarded to General Counsel for DLG until 4:14 p.m. on April 11; and, counsel did not receive it until April 12, 2019, DLG was required under KRS 61.880(1) to issue a written response within three working days, or by April 17, 2019. Ms. Molley's absence, which DLG mentioned on appeal, does not alter the analysis. Although she contacted Mr. Ervin by telephone and left a voicemail, a verbal response is not sufficient. See 10-ORD-003; 11-ORD-001; 12-ORD-180; 13-ORD-178; 16-ORD-044. Thus, in failing to issue a written response of any kind to Mr. Ervin's request within three working days of receipt and either provide access to any existing responsive documents that were not exempt under KRS 61.878(1) and explain the nonexistence of the remaining documents (if any), or properly invoke KRS 61.872(5) (first cited on appeal), DLG violated the Act.
The May 1, 2019, response by DLG to Mr. Ervin's amended request of that date was also procedurally and substantively deficient. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency[.]" KRS 61.880(1) also requires that a "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 "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996);
City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 851 (Ky. 2013); 04-ORD-208; 16-ORD-064.
In denying the majority of Mr. Ervin's amended request, DLG provided identical responses invoking the attorney-client privilege without further comment or legal citation to support its blanket denial. 5Public records may be withheld from disclosure under the attorney-client privilege in the context of an Open Records dispute if , as in
Hahn v. University of Louisville , 80 S.W.3d 771 (Ky. App. 2001), all of the elements of the privileges are present. See 10-ORD-177. The attorney-client privilege "does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions."
Cabinet for Health and Family Servs. v. Scorsone , 251 S.W.3d 328, 329 (Ky. 2008); 97-ORD-127, p. 1(citation omitted); 01-ORD-246. DLG did not cite KRE 503 or KRS 61.878(1)(l), pursuant to which KRE 503(b) is deemed incorporated into the Act, nor has it attempted to make a showing that each of the required elements can be satisfied as to any of the unspecified records withheld. A "bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . ." 00-ORD-10, p. 11; 13-ORD-052. DLG has not established that any documents in their entirety fall within the parameters of KRE 503(b). Rather, DLG initially maintained that Mr. Ervin had received "all" responsive documents. DLG might very well be able to successfully build a case for withholding some of the records withheld per KRE 503(b), but has failed to provide sufficiently detailed information to substantiate its position thus far. See 11-ORD-108; 16-ORD-064.
Application of KRS 61.872(3)(b)
In her June 7, 2019, appeal response, Ms. Molley disputed the assertion by the County Attorney's Office that DLG failed to conduct a "reasonable search for responsive records." 6For the first time, DLG argued that Mr. Ervin failed to "precisely describe" the records that he wanted as required under KRS 61.872(3)(b). She also enclosed a copy of a letter directed to Mr. Ervin on June 6, sent to supplement DLG's initial responses to his April 11 and May 1 requests. She advised that he must "precisely describe" the records in order to receive the requested copies per KRS 61.872(3)(b) because the Jefferson County Attorney's Office, on whose behalf he made the request, is located outside Franklin County where the records are located. However, she included two responsive e-mails that were presumably located upon DLG belatedly conducting a search, both of which related to payment of "LGEAF funds to Botanica." She also enclosed a copy of the May 6, 2019, letter from DLG to Botanica regarding a payment, which DLG provided on May 29, 2019, "immediately upon our discovery of the same." "Without knowing specifically to or from whom the correspondence you are seeking was sent, or a time frame for particular documents," Ms. Molley noted, "we can only speculate" regarding the records that you are seeking, "and have attempted to respond in good faith."
Also for the first time, DLG advised Mr. Ervin that his broad request encompassed records located in other agencies, namely, the Legislative Research Commission and the Finance and Administration Cabinet, pertaining to state legislative and budgetary matters, respectively; DLG should have provided such information per KRS 61.872(4), initially. 7However, pursuant to KRS 61.872(3)(b), a person is entitled to inspect public records "[b]y receiving copies of the public records from the public agency through the mail." A public agency "shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located" only after he " precisely describes the public records which are readily available within the public agency. . . ." (Emphasis added). See 03-ORD-067; 15-ORD-212; 16-ORD-242. Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, 8KRS 61.872(3)(b) requires the requester to "precisely describe" the records that he wishes to access by receipt of copies by mail. This degree of precision applies whether the request asks for the records in hard copy or electronic format as the difficulties associated with identifying and locating all responsive documents in order to ensure full compliance are the same when the records are not searchable based on the criteria provided. See 02-ORD-196; 14-ORD-173; 16-ORD-242; 18-ORD-068.
"If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 13-ORD-077, 9p. 3 (quoting 95-ORD-108). A request must be "specific enough so that a public agency can identify and locate the records in question." 13-ORD-077, p. 3 (quoting OAG 89-8). A requester satisfies the second requirement of KRS 61.872(3)(b) if he/she describes in "definite, specific and unequivocal terms" the records he wishes to receive. Id. Mr. Ervin did not do this. See 08-ORD-147; 16-ORD-242. In determining that a request was too imprecise to satisfy KRS 61.872(3)(b) in 13-ORD-077, this office stated, "'This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request.' 08-ORD-058. Such a request runs the risk of being 'so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.' 96-ORD-101." Id. , p. 4. Further, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ... generally need not be honored." 13-ORD-077, p. 4 (citing 99-ORD-14). Id. , p. 4.
Although Mr. Ervin asked for "records," instead of information, and the "all" phrasing is not fatal standing alone, 10the request did not precisely describe those records, and presumably no mechanism exists by which all records relating to the distribution or proposed distribution of the specified funds, in any format, can be identified and located. Accordingly, the records cannot be properly characterized as "readily available" within DLG. 11 See 96-ORD-69; 16-ORD-138. Because DLG is located in Frankfort, Kentucky (Franklin County) and the Jefferson County Attorney's Office (Mr. Ervin's employer) is located in Louisville, Kentucky (Jefferson County), Mr. Ervin satisfies the first requirement of KRS 61.872(3)(b). Nevertheless, Mr. Ervin is entitled to receive copies of responsive documents only after he "precisely describes" the documents, which must be "readily available within the agency." See 15-ORD-212. Neither his April 11 request, nor his amended May 1 request was "definite, specific and unequivocal." See 08-ORD-047; 12-ORD-049. DLG did not substantively violate the Act in denying the requests notwithstanding the procedural deficiencies noted above.
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.
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