Tuesday, September 1, 2009

Conway says district health department made several mistakes regarding public records

A Western Kentucky health department “subverted the intent” of the state Open Records Act in dealing with the Hopkinsville newspaper's requests for records, Attorney General Jack Conway said in a recent ruling.

The opinion, which is called an "open records decision" because it has the force of law, came after Kentucky New Era reporter Sarah Hogsed filed a request for restaurant inspection reports with the Pennyrile District Health Department. The New Era, which is already reporting on restaurant inspections in Christian County, plans to expand that coverage to adjoining Trigg and Todd counties.

The health department violated the open records law in several ways, the opinion said. First, it disputed Hogsed’s request to have the records within three days, saying it was only required to notify her within that period if it would comply. The attorney general's opinion said that the office was required to turn over the records in three days. The department demanded that she show up in person, present a photo ID and sign a standard form in the presence of a health department employee. That's not the law, either, the opinion said.

Hogsed would then get the records “in a reasonable period of time,” the reply said, “keep[ing] in mind two years of information is quiet [sic] time consuming.” She would also have to pay “all costs associated with the recovery and photocopying.” When the department finally got around to fulfilling the request, it appeared to get the job done in about one day, and charged the paper only 10 cents a copy, the general maximum established by previous attorneys general.

The opinion said the district's excuse for the delay – absence of staff – was not sufficient. The opinion added “in the interest of absolute clarity,” that those who ask for public records cannot be required to submit their requests on preprinted forms, or sign forms in the presence of an agency employee; that receipt of records no longer requires on-site inspection; that agencies may recover only their actual costs of reproducing public records, not including staff time, if the records are to be used for a noncommercial purpose, including use by a newspaper or periodical. The department had indicated that it considered the paper a commercial interest. "We suppose the notion that the news media act in the public interest had escaped the health department," the opinion said.

In another opinion, the attorney general's office ruled that the Shively Police Department’s failure to respond in a timely manner to a request for a police car video in a non-DUI case violated the Open Records Act. The full text of the decisions can be found through the Links of Interest at the bottom of the KOG Blog.

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