June 7, 1994
IN RE: Larry Dale Thacker/Office of the Pike County
OPEN RECORDS DECISION
Mr. Larry Dale Thacker appeals the actions of Pike County Judge/Executive, Donna Damron, in responding to his March 25, and April 11, 1994, open records requests. Mr. Thacker requested various records relating to road construction projects in the Pike County area. He complains that although he has obtained some of the requested records, he has been effectively denied access to the remaining records through repeated delays. Mr. Thacker asks that the Attorney General review Judge Damron's actions, and issue a decision stating whether her office violated the Open Records Law.
We have reviewed the written record submitted by Mr. Thacker, consisting of his March 25 and April 11 requests and Judge Damron's March 29 and April 11 responses, and conclude that these responses were both substantively and procedurally correct. It does, however, appear that as a result of these delays, Mr. Thacker has been denied timely access to the records he seeks.
In her March 29 and April 11 responses, Judge Damron advised Mr. Thacker that the requested records were available for inspection during work hours, and that a copier would be available for his use. With respect to each category of records requested, Judge Damron directed Mr. Thacker to an office within county government where those records could be located. Mr. Thacker's problems are with the Road Department.
Mr. Thacker indicates that on numerous occasions he has attempted to gain access to records in the custody of the Road Department. He has made several telephone calls and office visits over the course of three months, but has been advised that the records could not be retrieved because the Department's computers were "down." Thus, his efforts at obtaining records from the Department have been unavailing.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision 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 of the receipt of the request, and indicate whether the request will be granted. Nothing in the statute permits an agency to indefinitely delay this statutory deadline because the agency's computers are "down." The burden on the public agency to respond in three working days and afford a requester access to records is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
It is the opinion of this Office that the Pike County Judge/Executive failed to provide timely access to the records identified in Mr. Thacker's requests. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so 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.
Mr. Thacker's initial open records request was submitted on March 25, 1994. His second request was submitted on April 11, 1994. Those documents which Judge Damron's office located, and
which satisfied a portion of his requests, were released on March 25. The remainder of his request has not been satisfied.
Judge Damron's office erred in failing to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35. Although Mr. Thacker was offered repeated assurances that the records would soon be released, he was not advised of the place, time and earliest date on which the records would be available for inspection. We believe that a delay of this duration is inconsistent with the Open Records Act.
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records for a period of several years, such time limitations may be impossible to meet. It is apparent that the task of gathering documents might necessitate a reasonable extension of the three day period of limitation. It is our opinion, nevertheless, that the nearly three months which elapsed between the date Mr. Thacker submitted his initial request and the last reported release of records by the Road Department represents an inordinate and unreasonable delay.
In an early opinion, this Office recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in
making public records available for public inspection.
OAG 77-151, at p. 3. Nevertheless, we have also recognized:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-374, at p. 5. We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect. It is the opinion of this Office, assuming the accuracy of the facts presented by Mr. Thacker, that the Pike County Judge/Executive's Office violated the Open Records Act by failing to afford him timely access tot he requested records.
The Pike County Judge/Executive may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Donna Damron
Pike County Judge/Executive
Pike County Courthouse
324 Main Street
Pikeville, KY 41501
Mr. Larry Dale Thacker
172 Hurrican Creek Road
Kimper, KY 41539