If someone were to ask, “How should a public agency respond to an open records request under the temporary modifications to the law in SB 150,” I would answer, “Not like this.”
Following the termination of a Marshall County E-911 employee who alleged that the agency had not taken appropriate measures in response to a specific coronavirus threat, WKMS submitted an open records request to Marshall County E-911, Marshall County Fiscal Court and the Marshall County Sheriff’s Office for emails exchanged by officials that related to the employee’s concerns. (The E-911 employee has filed a lawsuit against county officials, WKMS reported on April 6.)
WKMS is the NPR affiliate in Murray.
Marshall County Sheriff Eddie McGuire promptly released an email issued by the E-911 dispatch center director on March 24, the day after the director’s alleged confrontation with the employee that culminated in her later termination.
The email stated that access to the 911 center would be limited until after the coronavirus threat has passed.
Assuming this was the single responsive record in the sheriff’s custody, his response was legally compliant.
It is the response issued on behalf of the fiscal court and E-911 center that flies in the face of SB 150, signed into law one day before WKMS submitted its request.
Until the declaration of emergency is lifted, SB 150 extends the deadline for agency response to an open records request from three business days to 10 days. The only other change it makes to the open records law relates to onsite inspection of public records, allowing agencies to postpone it. The latter modification is not at issue here.
The county responded one day after WKMS submitted its request, but advised:
“Due to the storage location of these records, it cannot be determined at this time if records responsive to your request are in existence and possessed by the Marshall County Fiscal Court.
“However, I have initiated a search to determine if records responsive to your request are in existence and possessed by the Marshall County Fiscal Court. The information will be released to you, to the extent the records are in existence and possessed by Marshall County Fiscal Court and required under the Kentucky Open Records Act, upon completion of the review.”
The county further advised that WKMS would receive the requested records or a response on May 2.
With virtually no explanation, 10 days became a month. This, when the value of those records is an absolute function of the timeliness of their release.
This was not a burdensome request for records that WKMS could postpone to a later date — contracts or check ledgers, for example — this was a request for records relating to the public agency’s response to allegations that it failed to protect its employees from a serious health threat.
We’ve seen retaliation against coronavirus “whistleblowers” in far too many other contexts, but because the employer here is a public agency, it cannot evade (or postpone until no longer essential) public scrutiny of its actions.
Its records are easily retrievable public records and accessible to the public if not statutorily exempt.
WKMS requested electronic records that can be accessed by the records custodian remotely. The custodian should immediately follow up with a written inquiry to each official identified in the request to verify that all responsive records have been located.
WKMS’ request identified a handful of specific officials whose emails it sought, a narrow time frame for the search and an even narrower search topic.
There is no mystery to “the storage location of these records,” and it can be easily determined ”if records responsive to (WKMS’s) request are in existence and possessed” by the fiscal court or E-911 center.
In other words, there is no legitimate basis for delay beyond 10 days for final production of records that reflect how the county responded and that have an immediate bearing on the health and welfare of county employees.
“The key” to open records compliance until this crisis has passed, we have noted more than once, “is reasonable leniency.”
We understand that the crisis we face is greater than any we have faced before, and that we must maintain a rational perspective on the importance of open records compliance in the grand scheme. But we firmly believe that Marshall County’s response to WKMS’s request is little more than an attempt to postpone or entirely evade disclosure of records that may (or may not) cast it in an unfavorable light.
Its open records business as usual in these highly unusual times. “Delay, delay, delay, and hope they go away.”
At a bare minimum, WKMS’s request warrants a final response within 10 days per the SB 150 modifications to the open records law.
And if access to any or all of the requested records is denied, Marshall County should be prepared to meet it statutory burden of proving that whole or partial denial is justified. In doing so, it should bear in mind that final agency action on the employment status of the terminated employee has been taken and safety measures, whatever they are, have been implemented.
In other words: Find the records, review the records and release the records on or before the 10th day and drop the bureaucratic jabberwocky.
Amye Bensenhaver spent 25 years as an assistant attorney general in Frankfort and is an expert on open records and open meetings. Now out of state government, she writes about these issues. Bensenhaver is a co-founder of the Kentucky Open Government Coalition with Jennifer P. Brown, who is the editor of Hoptown Chronicle.
