Holding public records hostage
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Public agencies regularly complain about the three working days’ statutory deadline for responding to an open records request.
“Responding,” in this context, means deciding whether to honor or deny a request, after locating and reviewing the records identified in that request, and making the records accessible to the requester after three days has elapsed. It does not mean acknowledging receipt of a request on the third day but delaying final action and disclosure of the records indefinitely. Lawmakers undoubtedly adopted a short turnaround for agency response in recognition of the fact that “the value of information is partly a function of time.”
While employed as an instructor at UK’s School of Journalism, former hostage Terry Anderson recounted his five-year struggle with federal agencies to secure access to records relating to the government’s efforts to secure his release from his Hezbollah kidnappers during his nearly seven-year captivity.
He described his bemusement when agency officials suggested that he obtain signed releases from his former captors to expedite disclosure of responsive records and protect his captors’ privacy. He shared his disappointment and frustration when the records ultimately released to him largely consisted of newspaper articles and photos.
In the case recognizing that “the value of information is partly a function of time,” the U.S. Department of Justice postponed access to requested records for eight years. The federal court decided that the record on appeal did not support the eight-year delay.
The court acknowledged that the Freedom of Information Act, which governs access to records of federal agencies, “doubtless poses practical difficulties for federal agencies,” but refused to “repeal it by a construction that vitiates any practical utility it may have.“ In other words, the court was unwilling to erode the principle of timely access to public records as an accommodation to the agency’s burden, real or imagined, and suggested that the agency present its concerns to Congress.
In 17-ORD-082, issued recently, Kentucky Attorney General’s office admonished Louisville Metro Government for failing to explain the reasons for a one-and-a-half month delay in producing records responsive to a series of broadly worded requests relating to an EEOC complaint of sexual harassment, hostile work environment, and retaliation filed by an employee of the Louisville Zoo.
Nevertheless, the attorney general found that the record on appeal supported the delay in producing the records beyond the three-day deadline as Louisville presented proof that just one of the multiple requests implicated more than 23,000 records.
Delays in production of public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level, but are no less offensive to the principle that “the value of information is partly a function of time.” Perhaps the solution to this and other problems lies in statutory revision of the 40-year-old law that is faithful to its strongly worded statements of legislative policy.–Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government. She is one of the foremost experts on Kentucky's nationally recognized open records and open meetings laws, having written nearly 2,000 legal opinions forcing government entities to operate in the open during a 25-year career as an assistant attorney general in the Kentucky Attorney General's Office.