Budgetary constraints do not excuse open records delay

Staff shortages and budgetary constraints do not excuse a failure to timely comply with Kentucky’s Open Records Act, the state’s attorney general ruled on Aug. 25.

The case began when Kentucky New Era reporter Sarah Hogsed requested restaurant health reports for 2008 and 2009 from the Pennyrile District Health Department and encountered a 21-day delay. Under the law, the government has only three days to respond to a request.

Public Health Director James M. Tolley claimed the department only had to notify her whether it would grant the request, as opposed to actually produce the records, within three business days. Attorney General Jack Conway disagreed.

“This office has long recognized that the Open Records Act ‘contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply,’” he wrote.

Exemptions to the strict statutory time frame can only be granted when records are “in active use, in storage, or not otherwise available.” The fact that the department viewed Hogsed’s request for 186 records as a “staggering” amount was irrelevant, Conway said. Lack of manpower due to vacationing employees was also rejected as a valid excuse for the delay.

The decision also struck down the department’s initial requirement that Hogsed submit her request in person on a pre-printed form, provide photo identification and pay "all costs associated with the recovery and photocopying." Only actual costs for copying, not staff labor, can be charged.