Wednesday, September 23, 2015

Procedural violations of Ky.'s open records act

A public agency can violate Kentucky's open records act in a variety of ways, some substantive and some procedural. This post will focus on different types of procedural errors public agencies can make in responding to open records requests. 

The methods by which a public agency can lawfully deny an open records request are outlined statutorily. (See KRS 61.870 - 61.884). 

The recent opinion in Art Anderson/Woodford County Emergency Medical Services, 15-ORD-168, provides an example of a procedurally deficient response. There, the Woodford County public agency issued a timely response (within three days, as required by statute), but its response to a request concerning an ambulance run was otherwise deficient.

The attorney general's office explained in Anderson that KRS 61.880(1) provides the procedural requirements for responses under the act. Some of those requirements are as follows:

  • Upon receipt of a request, a public agency shall determine within three days (excepting Saturdays, Sundays, and legal holidays) whether to comply with the request.
  • The public agency shall then notify the person making the request within that three day period of its decision. 
  • Further, a response that denies, in whole or in party, 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.
By neither citing its statutory authority nor providing a brief explanation of how that exception applied to the records, the Woodford County public agency failed to satisfy the act's requirements. 

(Nonetheless, nondisclosure of the requested records would be permitted based on a different statute, which prohibits disclosure of ambulance run reports unless appropriate authorization is given. The attorney general's opinion explained that that statute has been incorporated into the Kentucky Open Records Act.)

Further, in Melinda Gamble Lovern/University of Kentucky, 15-ORD-174, the attorney general's office found that UK had subverted the intent of the open records act by its delayed processing of records.

There, Gamble had requested certain documents from the university, and the university had not provided the records promptly and kept delaying disclosure. 

The attorney general's office recognized that a reasonable delay was warranted, given the voluminous nature of the requests and the necessity to make proper redactions, but that the university had subverted the intent of the act since its actions did not allow Gamble to have "timely access" to the records that she had requested. 

Viewed from this perspective, Anderson and Gamble serve as reminders to public agencies that they must be aware of the procedural requirements for any response they issue to requests for public records. Responses must be timely, and any reason for denial must be statutorily supported. 

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