Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : City of Martin subverted the intent of the Open Records Act by failing to respond to a written request for records, failing to provide a detailed explanation of the cause for delay in producing the requested records, and failing to provide a date certain for providing the records.
Open Records Decision
The issue presented in this appeal is whether the City of Martin ("City") violated the Open Records Act in its disposition of six open records requests submitted by Terry Thornsberry (Appellant"). For the reasons stated below, we find that the City subverted the intent of the Act short of a denial of inspection of the records.
On July 10, 2019, Appellant delivered six different open records requests to the City seeking records he described with specificity. Having received no response to his request, Appellant filed this appeal on July 29, 2019. In his appeal, Appellant stated that he had previously appealed to the Attorney General another open records request submitted to the City. 1 Appellant argued that the City is blatantly disregarding his rights under the Act.
On July 29, 2019, this office sent a copy of Appellant's letter of appeal to the City Mayor and City Attorney. That notification of appeal clearly stated that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal" and that the "response must be received no later than Friday, August 2, 2019." This office has received no response to the appeal from the City. On August 13, 2019, Appellant submitted a letter to this office stating that he received no contact from the City regarding his request or this appeal.
As a public agency, the City must adhere to both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to requests submitted pursuant to the Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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. An agency 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). The Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. 05-ORD-134. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that 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." OAG 92-117, p. 3. 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. 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 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). 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). The City violated KRS 61.872(5).
The City has failed to provide any reasonable or detailed explanation for the delay in honoring Appellant's request, thereby failing to fulfill its obligation under KRS 61.872(5). The procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9. The City's failure to provide a detailed explanation for delay and a statement of the earliest date certain for production of the requested records, for well over a month after the request, was a subversion of the intent of the Act short of denial of production of the requested records. The City must immediately make arrangements to produce the requested records to Appellant.
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 See 19-ORD-042. In that appeal, the Attorney General found that the City of Martin subverted the intent of the Open Records Act by failing to respond to Appellant's January 22, 2019 written request for records. The City failed to respond to the request for more than a month, or provide a detailed explanation for the cause for delay in producing the requested records. As with this appeal, the City failed to respond to the issues raised in the appeal.