Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Glencoe Board of Adjustment ("Board") violated the Open Records Act ("Act") in the disposition of five open records requests submitted by Michael Murphy ("Appellant"). For the reasons stated below, we find that the Board violated the Act when it failed to timely produce responsive records, per KRS 61.880(1), and failed to properly invoke KRS 61.872(5). The Board subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to meet its burden of proof and provide a legitimate detailed explanation of the cause for its delay.
On October 22, 2019, Appellant submitted five requests for records to Glencoe City Clerk Paula Giles seeking records he described as follows:
1. All approved minutes, pertaining to the meetings of the Board of Adjustment during the calendar year 2018 and 2019.
2. All documents pertaining to the selection and or voting of the Chairperson, to including [sic] a tally of the vote.
3. All resignations that were requested by the mayor on March 20, 2018.
4. Schedule of all regular meetings of the Board of Adjustments for 2019.
5. Copies of public notices of special meetings of the Board of Adjustment for the years of 2018 and 2019.
The City Clerk forwarded Appellant's requests to Board Attorney Corey T. Gamm. On October 23, 2019, the Board Attorney issued a written response delaying the production of responsive records and stating: "I have asked [the City Clerk] and [Board Chairperson Teresa Bowen] to compile any responsive records and I will forward them to you as soon as possible." The response failed to provide a detailed explanation of the cause for the delay, and failed to provide a date certain for the release of the responsive records.
On November 1, 2019, Appellant appealed to this office. Appellant argued that the Board failed to follow the mandatory requirements of KRS 61.872(5) when it delayed responding to his requests.
On November 8, 2019, the Board responded to the appeal, arguing that the October 23 written response was timely and all existing responsive records were available for inspection on October 29. The Board argued Appellant misdirected his requests when he filed them with the City Clerk, but the Board failed to identify the appropriate custodian of records. The Board stated that the City Clerk and Board Chairperson conducted the search for responsive records, and the Board provided Appellant copies of all responsive records by mail and email on October 30, 2019. The Board asked that this office find the appeal moot.
We decline to find the appeal is moot because this appeal raises an issue under KRS 61.880(4) as to whether the intent of Act was subverted by a public agency short of denial of inspection. The Act requires such complaints "shall be subject to the same adjudicatory process as if the record had been denied." See KRS 61.880(4). Further, 40 KAR 1:030, Section 6, provides: "If 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." However, the Board denied some responsive records, stating that they do not exist. An agency's inability to produce records owing to their nonexistence is, as we have often noted, tantamount to a denial. See 01-ORD-38. "[U]nless all records identified in an open records request are released,...the issue before the Attorney General is not moot." See 09-ORD-007, p. 5. Accordingly, we find the issues on appeal are not moot.
The Board Violated KRS 61.880(1) and KRS 61.872(5) . The Board violated the Act by failing to comply with the time requirements of KRS 61.880(1), or properly invoke KRS 61.872(5) in postponing its response to Appellant's requests. 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 is required to "notify the requester and designate an inspection date not to exceed three days form agency receipt of the request." OAG 92-117, p. 3. "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). 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 record establishes that the Board received Appellant's requests on October 23, 2019, and issued a timely written response stating that the agency will comply. However, production of the responsive records was due, excepting Saturday and Sunday, on October 28, 2019. As such, the Board violated KRS 61.880(1) by failing to provide Appellant copies of the existing responsive records until October 30. "[T]imely access" to public records is defined as "any time less than three days from the agency receipt of the request." OAG 82-300, p. 3. Accordingly, the Board violated KRS 61.880(1) by failing to produce the existing responsive records in a timely manner.
The Board provided Appellant copies of the responsive records on October 30, but a public agency must properly invoke KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records, even for a brief delay of the three business day requirement of KRS 61.880(1). KSR 61.872(5) 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." A public agency is required to expressly invoke KRS 61.872(5), because KRS 61.880(1) requires the public agency to provide written notice of the agency decision to the person making the request within three business days. The Board violated the Act in failing to expressly invoke KRS 61.872(5) in its written responses to the requests and on appeal.
The Board also failed to provide the statutorily-required detailed explanation of the cause for delay. If any of the responsive records sought were "in active use, in storage or not otherwise available," the Board failed to identify which of the permissible reasons for delay applied or to what extent. The Board's statement that the records would be available "as soon as possible" failed to meet the specificity requirement of KRS 61.872(5), because it "sets forth neither the volume of records involved nor explains, in detail, the problems associated with retrieving the records implicated by the request that would support" the delay in providing the records. 02-ORD-217. "In the absence of a legitimate detailed explanation of the cause for delaying access" we find that the Board failed to provide "timely access" to the existing responsive records. 15-ORD-141, p. 5.
The Board Subverted the Act, Short of Denial and Within the Meaning of KRS 61.880(4) . The Board failed to meet its burden of proof and provide a legitimate detailed explanation of the cause for delaying Appellant's access to the responsive records. As such, this office must conclude that Appellant did not receive "timely access" to the records the Board eventually provided, and the Board's delay subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4). See 10-ORD-138 (Cabinet for Health and Family Services, "without adequate explanation for the delay pursuant to KRS 61.872(5)," subverted the intent of the Act in delaying access to personnel file of employee for more than two months); 13-ORD-004; 18-ORD-174.
On appeal, the Board stated that Appellant misdirected his request when he submitted it with the City Clerk. However, the Board failed to identify its custodian of records. Further, the record shows that the City Clerk participated in the search for the Board's responsive records. As such, the evidence does not support the Board's argument that Appellant's request for records was misdirected. In relevant part, KRS 61.880(2)(c) provides that the "burden of proof in sustaining the action shall rest with the agency[.]" Because the Board has failed to meet its burden of proof and provide a legitimate detailed explanation for the cause of its delay, we find that the Board subverted the intent of the Act within the meaning of KRS 61.880(4).
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.