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. 

Saturday, September 12, 2015

Not letting the exceptions swallow the rule

Under Kentucky's open records law, the basic policy "is that free and open examination of public records is in the public interest." As such, the General Assembly has asserted that the exceptions to the rule are to be construed strictly. (See KRS 61.871). 

This policy means that openness is to be the standard, and that reasons for non-disclosure are to be the exceptions to the general rule. This is to be true "even though such examination may cause inconvenience or embarrassment to public officials or others." (See KRS 61.871). However, the exceptions to the broad policy of openness must bend to other interests in a variety of situations. 

Recently, the attorney general's office addressed whether certain records held by a county's circuit court clerk should be subject to the state's open records laws. 

In re Orenthal Mitchell/Jefferson Circuit Court Clerk, 15-ORD-156, Mitchell appealed to the attorney general's office after the Jefferson Circuit Court Clerk was unresponsive to his request for a copy of child support orders, visitation and custody orders, and judgments entered by Jefferson County in reference to him. 

In its opinion, the attorney general's office adopted analysis from one of its previous decisions and found that records in the custody of circuit and district court clerks are properly characterized as court records. As such, the Open Records Act does not apply to those types of records. Further, the opinion noted that the attorney general "has long recognized that neither circuit nor district court clerks are subject to the provisions of the Open Records Act." 

Though public policy favors openness and disclosure of public records, Kentucky law recognizes that not all records must be subject to the strictures of the open records law for a variety of reasons. Here, the attorney general's office stressed that, as it had stated in its previous opinion, "[s]imply stated, disputes relating to access to court records must be resolved by the court."