Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : Request for inspection of a letter rescinding a resignation is moot, pursuant to 40 KAR 1:030 Section 6, because the Taylorsville--Spencer County Fire District ("Fire District") made the record available after the filing of the appeal. Given the conflicting evidence regarding the actual delivery and receipt of the open records request, there is insufficient evidence that the Fire District violated the time requirement of KRS 61.880(1). The Fire District violated the Open Records Act by failing to expressly invoke KRS 61.872(5) and by failing to provide a detailed explanation of the cause for delaying access to responsive records, but corrected the errors during the appeal.
Open Records Decision
The question presented in this appeal is whether the Taylorsville--Spencer County Fire District ("Fire District") violated the Open Records Act ("Act") in the disposition of multiple open records requests submitted by Lawrence Trageser ("Appellant"). We find that the appeal is moot, pursuant to 40 KAR 1:030 Section 6, 1as it relates to a request to inspect a letter rescinding a resignation. We find that insufficient evidence exists in the record that the Fire District violated KRS 61.880(1) by failing to issue a written response within three business days. We also find that the Fire District failed to expressly invoke KRS 61.872(5), and failed to provide a detailed explanation of the cause for the delaying Appellant's inspection of records, but corrected the error during the appeal. The Fire District cannot provide access to records that do not exist.
On May 29, 2019, Appellant submitted an open records request to the Fire District, seeking to inspect the personnel policies and guidelines handbook, and the personnel files of three employees. Regarding the personnel files, Appellant stated that he expected to find within one, "a letter rescinding Bill Jenkins's forced resignation."
On June 5, 2019, the Fire District Chief Nathan B. Nation responded to the requests, "[t]his letter is in response to your open records requests dated May 29, 2019 and presented to me on May 31, 2019." The response stated that records would be available on June 11, 2019 because of, "personal information that has to be redacted." The response stated that the personnel handbook and employee files existed and were available for inspection. However, the Fire District denied the request for inspection of a letter rescinding the resignation of Bill Jenkins, stating that a responsive record did not exist.
On June 10, 2019, Appellant appealed the disposition of his request. Appellant argued that the Fire District's June 5 response was untimely, stating, "on May 29, 2019...[t]he open records request was personally hand delivered to Chief Nathan Nation at the intersection of Highway 44 and Highway 55 in Taylorsville." Appellant also argued that the response violated the Act by further delaying inspection to June 11, 2109. Appellant argued that the letter rescinding the resignation of Bill Jenkins existed, and the Fire District was intentionally withholding the record.
On June 19, 2019, Chief Nation responded to the appeal on behalf of the Fire District. Chief Nation argued that the June 5 response was timely because the open records request was, "presented to one of our Jr. Firefighters working the Crusade for Children roadblock at Highway 44 and Highway 55 in Taylorsville on May 31, 2019 at approximately 9:30 a.m. The Jr. Firefighter then presented the request to me at that time." The Fire District argued that the additional delay of inspection to June 11, 2019 was necessary under "KRS 61.872." Chief Nation stated that he reviewed the responsive records because the Fire District does not have support staff. He also stated that the responsive records consisted of, "approximately 300-350 pages of documents and 20 hours of video footage for review to see if any information should be redacted." However, the Fire District stated that on June 10, 2019, Chief Nation contacted Appellant to inform him that the records were ready for inspection. Chief Nation stated that he personally informed Appellant that the requested resignation rescinding letter was available for inspection and copying.
On June 24, 2019, Appellant replied to the Fire District appeal response. Appellant stated that the Fire District received the requested resignation rescinding letter before the appeal, and argued the agency's assertion that the record did not exist was false. However, there is no dispute that the record is now available for inspection and copying.
Appeal is Moot Relating to the Letter Rescinding the Resignation . Regarding the letter rescinding the resignation of Bill Jenkins, the record is now available for Appellant to inspect and copy. The evidence existing in the record does not clearly establish when the Fire District came into possession of the responsive record. However, the evidence in the record establishes that the Fire District made the record available for inspection and copying during the appeal. Pursuant to 40 KAR 1:030, Section 6, "[i]f 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." Accordingly, we decline to issue a decision on matters relating to that record.
No Basis for Finding a Violation of the Time Requirement of KRS 61.880(1) . Appellant argues that the Fire District violated the Act by failing to issue a timely written response within three working days, which the public agency denies. In relevant part, KRS 61.880(1) provides that upon receipt of an open records 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." Because insufficient evidence exists in the record, this office has no basis to find a violation of the time requirements of KRS 61.880(1). See 19-ORD-057, p. 2 (absent irrefutable proof of the actual delivery and receipt of the request, there was insufficient evidence that the public agency violated KRS 61.880(1)).
This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning the actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204; 18-ORD-006. More specifically, "this office is not equipped to resolve factual dispute[s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132. While we have no reason to question Appellant's claim that he hand delivered his request on May 29, the record equally lacks any evidence refuting the Fire District's claim that it did not receive the request until May 31. As such, insufficient evidence exists in the record that the Fire District violated KRS 61.880(1).
Fire District Initially Failed to Invoke KRS 61.872(5) but Corrected the Errors on Appeal . The Fire District delayed Appellant's access to responsive records but initially failed to invoke KRS 61.872(5). As such, the Fire District violated KRS 61.880(1) by improperly postponing Appellant's inspection of the responsive records. See 01-ORD-140, pp. 3-4, (the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply"). However, the Fire District corrected the error by expressly invoking KRS 61.872(5) in its response to the appeal.
A public agency violates KRS 61.880(1) if it delays a requester's access to responsive records without first providing information mandated by KRS 61.872(5), which states:
KRS 61.872(5) is the only provision that authorizes postponement of access beyond the three business days mandated in KRS 61.880(1). Therefore, a public agency must expressly invoke the statute when it delays a requester's access to public records. See 15-ORD-174, p. 6; 18-ORD-188. The Fire District failed to expressly invoke KRS 61.872(5) in its initial written response to Appellant's request for records, but corrected the error by expressly invoking it on appeal.
In addition, the Fire District also violated KRS 61.872(5) when it stated that a delay was necessary to review and redact responsive records of "personal information." The statement does not constitute the "detailed explanation of the cause...for further delay" required by KRS 61.872(5). This office has found that reviewing and redacting responsive records is an ordinary part of fulfilling an open records request. 15-ORD-029, p. 3; 17-ORD-082. As such, the initial response to Appellant's request violated that provision of KRS 61.872(5).
However, the Fire District corrected the error by providing Appellant a detailed explanation of the cause for delay in the appeal response. The agency provided a description of Chief Nation's review of responsive records, including a statement of the volume of responsive pages and audio recordings. The explanation was sufficient because it supported the delay by setting forth the volume of records involved and explained, in detail, the problems associated with retrieving the records. See 02-ORD-217; 12-ORD-043; 13-ORD-168. Applicants making requests for a significant volume of records, as Appellant did here, can "not reasonably expect agencies . . . to produce all responsive records within the three day deadline." 12-ORD-097, p. 6. Accordingly, the Fire District corrected the violation during the appeal.
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 40 KAR 1:030, Section 6 states: "Moot complaints. If 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."