Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Summary : Paducah Independent School District violated the Open Records Act by requiring non-commercial requester to use a preprinted request form. Paducah Independent also violated the Act by failing to respond in writing to the request within three days.
Open Records Decision
The question presented in this appeal is whether Paducah Independent School District ("Paducah Independent") violated the Open Records Act in responding to the open records request of Appellant Philip Lombard. For the reasons stated below, we find that Paducah Independent violated the Open Records Act by initially informing Appellant that he had to submit his request on a preprinted form and by failing to inform Appellant of its decision to comply with his request within three business days.
On August 9, 2019, Appellant emailed an open records request to Paducah Independent asking for a copy "of the fee amounts your high school charges students for marching band, concert band, and band camp . . . and policy documents . . . and forms associated with the same." He also requested "any written policy or forms having to do with fee waivers or discounts to the normal fee(s)." The written request specifically stated the records requested were for non-commercial use. On August 12, 2019, Superintendent Donald Shively responded by email that, "Board procedure 01.6 AP.2 requires the attached form to be completed in regard to request [sic] to examine and/or copy District records." (Emphasis added.) He also directed Appellant to the records custodian for Paducah Independent. Appellant completed the form and sent it to the Superintendent and the Records Custodian the same day, on August 12, 2019. The Superintendent responded on August 14, 2019, asking Appellant for clarification on his open records request as he "did not specify what records [he was] requested on the attached form." Appellant confirmed that the August 9 email contained his request for records. Finally, on August 20, 2019, the Superintendent sent an email to Appellant with the requested records attached. On August 22, 2019, Appellant filed his appeal with this office, arguing that Paducah Independent failed to comply with the Open Records Act by requiring that he submit his request for records on the provided form.
Nicholas Holland, of Whitlow, Roberts, Houston & Straub, LLC, responded to the appeal on behalf of Paducah Independent. Paducah Independent argued that the appeal was moot because the records were provided to Appellant; it further argued that the form was "not mandatory," but provided in response to a deficient records request. Paducah Independent allege the request was deficient because it was not addressed to the custodian of records and Appellant's request for copies of "the fee amounts for high school marching band students" was actually an impermissible request for information.
Though neither party maintains that the requested records were not provided, a number of procedural violations occurred. With regard to the procedural issue as to the timeliness of Paducah Independent's response, 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."
Fiduccia v. U.S. Dep't of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). Timeliness is a fundamental premise of the Open Records Act, underscored by the three-day agency response time codified at KRS 61.880(1).
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. 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.
Appellant submitted his open records request on August 9, 2019, and did not receive the requested records until August 20, 2019. Even after completing the required form on August 12, 2019, Appellant waited an additional eight days for his requested records. The burden of proof rests with the agency and Paducah Independent did not cite the statutory basis for delaying access to the requested records. Therefore, Paducah Independent subverted the intent of the Act in delaying access to the responsive records. See 15-ORD-141.
Second, Paducah Independent violated the Open Records Act when it responded to the open records request requiring that the request be sent on a specific form devised by the School Board. 1 At page 2 of 94-ORD-101, the Attorney General stated:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
Id. This position echoed an early open records opinion in which the Attorney General stated that, "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2. See also 95-ORD-60, 95-ORD-33. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) 2 narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information. 3
In this appeal, the open records request form attached to the appeal has blank spaces for a requester to complete with his/her name, date, mailing address, phone number, requested records, whether the requester is a parent of a child at a District school, and, if so, the child's name. The form also contains blank spaces for a signature and printed name. Although no statutory authority exists for requiring the applicant to provide this information, it is requested in the form presumably to facilitate communication between the parties as well as a timely agency response. While a request should not be denied simply because the applicant refuses to furnish this information, this office has found that the inclusion of these requests does not constitute a subversion of the intent of the Act. See 03-ORD-086, n. 2.
In 94-ORD-101, the office observed:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
The office also noted that an agency violates the Open Records Act when it ignores "the application or request to inspect public records because it was not submitted on a particular form devised by the public agency, " and that the agency "was under a legal obligation to respond to the request within the statutorily mandated time frame ? ." 94-ORD-101, at 4. Thus, while a public agency may request certain additional information not specifically set forth at KRS 61.872(2), compliance with the records request shall not be contingent upon the requester providing that information, nor upon the use of a form provided by the public agency.
Here, Appellant submitted his request on August 9, 2019, and Paducah Independent did not timely respond because it required him to submit the request on the required form. Even after submitting the required form on August 12, 2019, he did not receive the requested records until August 20, 2019, as Paducah Independent required Appellant to restate his request multiple times to comply with the parameters of the form. Though the form itself does not violate the Act, Paducah Independent subverted the intent of the Act by delaying access to the requested records due to an incomplete form.
As to Paducah Independent's argument that the request was deficient, we find that it was not. First, the request was not deficient because it was not addressed to the records custodian. "Under ordinary circumstances, if an open records request is inadvertently submitted to [an agency employee] other than the official custodian, whether through ignorance or misdirection, agency employees are expected to promptly reroute the request to the official custodian so that a timely consideration of the request is insured." 12-ORD-167. An exception is made for repeat filers who clearly know the identity of the records custodian. Neither party alleges that Appellant is a repeat filer. Instead, Appellant submitted his open records request on August 9, 2019, but was not informed of the records custodian until August 12, 2019. The same day, he responded to Paducah Independent on its required form and included the records custodian on that email. Accordingly, Paducah Independent's denial on this basis is improper.
Second, the request was not an "impermissible request for information." "[A] public agency is not required to compile a list or to create a record in response to an open records request." 16-ORD-237. A request for information is "outside of the scope of the open records provisions." Here, however, Appellant specifically asked for copies of documents and forms and , for "written" policies. This is not a request for information, but a request for documents.
Accordingly, though Paducah Independent's open records request form itself is not in violation of the Open Records Act, we find that Paducah Independent subverted the intent of the Act in initially requiring Appellant to complete the open records request form and also violated KRS 61.880(1) by failing to provide the requested records or notify Appellant of its intent in writing within three days.
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 Though Paducah Independent argues on appeal that the form is not required for an open records appeal, the record indicates that the District Superintendent stated the form was required by email ( "Board procedure 01.6 AP.2 requires the attached form to be completed in regard to request [sic] to examine and/or copy District records."). Further, even after Appellant submitted the required form, the Superintendent again responded that the form was deficient and required Appellant to again request the records he had already requested in the initial records request email. Notably, the form itself states that it is not mandatory, but it is apparently the practice of Paducah Independent to require the form. See 12-ORD-167 ("If practice does not mirror written policy, and the county requires open records requesters to use its preprinted form as a precondition to inspecting, or obtaining copies of, public records, that practice contravenes clearly established authority.").
2 KRS 61.872(2) states:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 The only exception to this rule, not relevant here, is found at KRS 61.874(4)(b),1 permitting public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a).