NOT TO BE PUBLISHED

96-ORD-102

May 7, 1996

In re: Royden K. Cullinan/City of Louisville

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the City of Louisville's response to Mr. Royden K. Cullinan's open records request to inspect contract attorney “Lynch, Cox invoices for November, 1995 through February, 1996.”

Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, responded to Mr. Cullinan's request, stating:

At this time, the Lynch, Cox invoices are preliminary and not available for inspection. However, we anticipate them being available in the near future. At this point, we do not waive any other statutory exemptions which may apply.

We are asked to determine whether the City's response was in accord with the Open Records Act. For the reasons which follow it is the decision of this office that the response was consistent in part and inconsistent in part with the Act.

After receipt of Mr. Cullinan's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Guagliardo, by letter dated April 15, 1996, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Guagliardo cited KRS 61.878(1)(i) and (j) as authority for withholding those invoices which were not provided Mr. Cullinan. Mr. Guagliardo explained that the invoices were classified as preliminary records because the City was in the process of checking, cross-checking, approving, and finalizing the invoices for payment. He stated that at the time of Mr. Cullinan's request the invoices were not final documents.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides in part:

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.

Based on the documentation presented by the City, we conclude that it failed to meet its burden in establishing that a submitted invoice, which has to be checked for approval and payment, constitutes a preliminary document exempt from disclosure under KRS 61.878(1)(i) and (j). Thus, this portion of the City's response was inconsistent with the Open Records Act.

The general rule is that records of payment made to attorneys by a public agency and bills, invoices, and statements submitted to the agency by its attorneys should be made available for inspection. Should the invoices and billing statements contain or disclose substantive legal matters protected by the attorney client privilege, the exempt material should be separated from the nonexempt material, and the nonexempt material made available for inspection. 93-ORD-58; OAG 92-92. The City acknowledged this in its response by providing Mr. Cullinan with copies of invoices which had been finalized and approved for payment. However, it did not provide Mr. Cullinan with copies of invoices that were in the process of being finalized for approval and payment.

This office recognizes that there may be instances in responding to an open records request when production of otherwise nonexempt records is delayed for agency processing or is in active use. However, we note that “active use” as contemplated by the Open Records Act is substantive use of the records and not merely a delaying tactic to keep from timely production of the records. We find that checking invoices for approval and payment, under the facts in this case, to be a substantive use of the invoices.

However, if the delay is to be in excess of three working days after an open records request has been made, the agency is required to immediately notify the requester and provide a detailed explanation of the cause for further delay and give a place, time and earliest date on which the public record will be available for inspection. KRS 61.872(5).

In the instant case, the City promptly notified Mr. Cullinan that there would be a delay in providing certain invoices and explained that the delay was because they were, at the time the request was made, currently being processed for payment. This portion of the City's response was proper and consistent with provisions of the Open Records Act.

However, the City failed to provide Mr. Cullinan with a time and the earliest date on which the invoices would be available for inspection. “In the near future” is not specific or certain enough to advise the requester whether he may be allowed to inspect the requested records within a reasonable period of time. This portion of the City's response is inconsistent with the requirements of KRS 61.872(5).

In 93-ORD-134, this office engaged in a lengthy analysis of the concept of timely access to public records. At page 12 of that decision, we concluded:

[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.

To the extent the City failed to provide Mr. Cullinan with timely access to the records identified in his request, timely access being defined as “any time less than three days from agency receipt of the request,” OAG 84-300, p. 3, or in the alternative, with a detailed explanation of the cause of any delay beyond three days, as well as a statement indicating the earliest possible date on which the records would be available for inspection, it was in violation of the Open Records Act. KRS 61.872(5).

Accordingly, if it already has not done so, the City should promptly make the invoices available for Mr. Cullinan's inspection.

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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

A.B. CHANDLER III

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/396

Distributed to:

Royden K. Cullinan

1406 Browns Lane, 2nd Floor

Louisville, Kentucky 40207

Paul V. Guagliardo, Senior Attorney

City of Louisville

Department of Law

Room 200, City Hall

Louisville, Kentucky 40202-4215