As a practical way of observing Sunshine Week, the Bluegrass Institute offers the second installment of its “how to” series for citizen open government advocates. These frequently asked open records questions and answers focus on what an open records requester should expect from a public agency after he submits a request and what the requester can do if his request is denied. Tomorrow we will turn our attention to frequently asked questions about the Open Meetings Act.
1. What should I expect from the public agency after I submit my request?
Public agencies have three working days – excluding Saturdays, Sundays and legal holidays — to respond to your request in writing. This written response should not simply acknowledge receipt of your request. It should state whether your request will be honored or denied. If you are notified that your request will be honored, the response should indicate that the records are available for inspection during the agency’s regular business hours or tell you how much you must prepay for copies of the records before they will be mailed.
The three working day deadline begins to run the day after the request reaches the agency. Because delays often occur in the mail, you should add at least two days on either end of the three working days in calculating the agency’s deadline. You can avoid this problem by hand delivering or faxing your open records request. If the agency accepts emailed requests, you should consider this option.
The agency may ask you to clarify your request, but it cannot, in general, ask you how you intend to use the records. It may, however, ask you to state whether your intended use is commercial – defined in ORA as any use by which the user expects a profit – for the limited purpose of determining how much to charge you for copies. Commercial users can be assessed higher copying fees.
An agency’s failure to respond to your request or attempt to impose excessive copying fees can be appealed.
2. When should the records be available for inspection or mailed to me?
ORA requires the records to be available for inspection or pick up when you are notified that your request will be honored on the third working day. An agency may only postpone delivery of the records beyond three working days if the request involves records that are “in active use, in storage, or otherwise unavailable.” In such cases, the agency must notify you – in writing — on the third business day, give you a detailed explanation of the cause for delay, and tell you the earliest date the records will be available.
As noted, if you have requested that the records be mailed to you, the agency will notify you what the copying and postage charges are in its written response and may wait until you prepay before it mails you the copies.
The usual charge for hard copy records is ten cents per page. Agencies can only charge you their “actual costs” to make the copies, excluding staff costs, unless you intend to use the records for a commercial purpose. In some cases, a separate statute authorizes an agency to charge you more for records (ex., county clerks may charge up to fifty cents per page for their records and law enforcement agencies may charge $5 to $10 for an accident report depending on how it is provided). Only county clerks have the legal right to refuse to permit you to make your own copies with a camera phone or scanner.
A request for records to be emailed to you may eliminate many of these requirements, but not all agencies will honor such a request.
An agency’s failure to produce open records in three working days or provide a written explanation for delay can be appealed.
3. What if an agency responds by denying my request?
If it believes the law supports denial, an agency may deny all or part of your open records request. In this case, the agency’s written response must describe the records it is withholding, cite the statute it is relying on to deny your request, and explain how the exception applies to the records – or parts of records – withheld. An agency cannot deny your request entirely because the record you request contains both protected and nonprotected information. It must release the nonprotected part of the record to you and explain what was withheld and why.
For example, you request copies of city employee payroll records from January 2018 to the present. The payroll records contain employee salary information, but they also contain the employees’ social security numbers and home addresses. The city notifies you – in writing and on the third working day – that the payroll records are available for inspection but that, “pursuant to KRS 61.878(1)(a), the employees’ social security numbers and home addresses are masked since this information is unrelated to the performance of the employees’ public duties and the public interest in disclosure must yield to the employees’ privacy interest.”
ORA requires the agency to briefly explain how the statute/exception it relies on to deny your request applies to the records withheld. In 1996, the courts held that the agency must provide you with “particular and detailed” information when it denies a request. In 2013, the courts held that the agency must provide you with “sufficient information” about the record withheld to allow you “to dispute” its claim that the record is protected from public inspection.
An agency may also deny a request if the requested record is not in its possession or custody. In these cases, the agency should tell you the name and address of the agency that has possession or custody of the record you seek. Finally, an agency may deny a request if production of the requested records imposes an unreasonable burden. If an agency denies your request as unreasonably burdensome, it must provide clear and convincing proof of that burden.
An agency’s denial of a request for any of these reasons can be appealed.
4. What are the most commonly cited statutes/exceptions agencies rely on in denying requests?
Although ORA is “a disclosure statute,” ORA recognizes that certain public records should be protected from disclosure in order to protect personal privacy or a legitimate need for governmental confidentiality. ORA contains 14 “exceptions” to the public’s right to know. The most commonly cited are:
- The privacy exception for records containing personal information if the disclosure of the information would constitute “a clearly unwarranted invasion of personal privacy.” Privacy denials are examined on a case by case basis. For example, a 911 call may or may not be protected depending on the sensitivity of its content.
- The preliminary documents exceptions for drafts, notes, nonfinal correspondence, and internal preliminary memoranda in which opinions are expressed or policies formulated. For example, investigative records or interoffice communications are protected from disclosure until final action is taken or a decision is made to take no action. Afterwards, preliminary records should be released if they are adopted by the agency.
- The law enforcement exception for records compiled by law enforcement agencies in the process of investigating violations of the law if release of the records “would harm the agency.” The agency must be able to show that release of the record poses a concrete risk of harm in a future enforcement action.
Other frequently cited exceptions protect records containing confidential or proprietary information disclosed to a public agency if disclosure would give an unfair commercial advantage to competitors of the person/company that confidentially disclosed it; records made confidential by state or federal law; and records which, if disclosed, create a “reasonable likelihood” of threatening the public safety through a terrorist act. There are seven other exceptions to ORA but those exceptions are less frequently cited.
A denial based on any of these exceptions can be appealed.
5. What are my options if an agency denies my request?
You can appeal the agency’s denial of your open records request to the Office of the Attorney General. 700 Capital Avenue, Frankfort, KY 40601, by mailing or emailing a copy of your written request and a copy of the agency’s denial. If the agency did not respond to your request, you should explain this to the OAG in a cover letter. The OAG has adopted regulations that provide guidance on the appeals process.
An open records appeal to the OAG costs nothing, can be handled without an attorney, and takes less time than an appeal in the courts. The OAG’s decision in an open records appeal is called an Open Records Decision (“ORD”) and is numbered by year and order of release (“18-ORD-001” is the designation for the first decision issued in 2018 and so on). An ORD has the force and effect of law and binds the requester and the agency if not appealed to circuit court within 30 days. Either the agency or you can appeal an unfavorable decision to the circuit court.
You can bypass the OAG and file an appeal in circuit court if the denial raises complex legal issues that require the greater time and resources of a court or if you disagree with the OAG’s position in past decisions of his office involving the same issues. Inmates in correctional facilities must always begin the process by filing an appeal to the OAG within 20 days of denial of their requests.
There is no other “statute of limitation” for filing an open records appeal to the OAG. A “letter of appeal” is not legally required – just a copy of your written request and the agency’s written denial – but you may include a letter in which you provide relevant factual background and legal arguments supporting your position.
Your appeal will be assigned to an assistant attorney general and written notification of your appeal will be mailed to the agency and to you. The assistant AG will review the facts and law – perhaps seek additional information from the agency – and issue an ORD within 20 working days. In “unusual circumstances” this deadline may be extended by 30 working days for a total of 50 days. You will receive a copy of the ORD by mail. The agency will also receive a copy by mail.
The OAG is only authorized to decide whether the agency’s actions violated the provisions of ORA. He cannot “enforce” ORA or impose penalties for violations of ORA.
6. What are some tips for dealing with the OAG?
If you submit more than one open records appeal at a time, keep track of the OAG log numbers to avoid confusion.
Provide the OAG with your contact information. Requests and appeals submitted by fax or email often omit this information.
Do not call the OAG’s staff to add new arguments or information. Quickly put the information in writing and fax or email it to the assistant AG assigned to the appeal. His or her name appears on the notification issued by the OAG upon receipt of your appeal.
The agency has five days to respond to your appeal in writing. It must provide you with a copy of its written response and any additional correspondence with the assistant AG. You should extend the same courtesy to the agency if you correspond with the OAG after you file your appeal.
If you do not receive written notification that the OAG received your appeal within a week of sending it to the OAG, call his office at (502)696-5300 and ask to speak to the open records staff.
You are statutorily entitled to receive an ORD within 20 or 50 days, as described above, and the OAG is statutorily required to issue the ORD within this timeframe. Call the open records staff if there is a delay.
If you lose your appeal, or are dissatisfied with the ORD, you may appeal it to the circuit court within 30 days of the day it was issued. You will be the Plaintiff (Petitioner or Appellant) and the agency will be the Defendant (Respondent or Appellee). If the agency loses the appeal, or is dissatisfied with the ORD, it may appeal. In this case, the legal designations will be reversed. The OAG must be notified of the circuit court appeal but cannot be named as a party.
7. What are some tips for dealing with public agencies?
An agency has 30 days to decide whether to comply with an ORD or appeal to circuit court. Agencies can, and frequently do, take the full 30 days to decide.
You may call or write the agency as the 30 days proceed to ask what it intends to do, but the agency is not legally required to tell you.
Occasionally, an agency is prepared to released the records but is reluctant to do so unless the OAG issues an ORD declaring that ORA requires it to do so. In these cases, a phone call to the agency may dislodge the records.
Be nice. Experience teaches that flaunting your victory is not conducive to prompt agency disclosure of records.
If the agency appeals to circuit court and loses there, it has one more appeal “of right” to the Court of Appeals. If the agency loses at the Court of Appeals, it may petition the Supreme Court for “discretionary review.” You have the same legal rights.
Only the courts can impose penalties, attorneys’ fees and costs authorized by ORA. The courts may assess attorneys’ fees, costs, and penalties of up to $25 per day for each day a record is willfully withheld.
This overview of the open records process is intended to assist you in becoming a better citizen open government advocate. Additional assistance may be available through the OAG’s open records staff and the Bluegrass Institute Center for Open Government.