§ 37.05  RESPONDING TO PUBLIC RECORDS REQUESTS.
   (A)   The city’s final written response to a public records request shall be issued within three business days. This excludes Saturdays, Sundays and legal holidays.
   (B)   In calculating the three-day response time, the city may exclude the date on which the request arrived by U.S. mail, fax, hand-delivery or e-mail.
   (C)   If the public records request requires production of open records that are “in active use, in storage, or not otherwise available”, the city shall notify the requester, in writing and no later than the third business day, that it cannot immediately produce the requested records. The phrase “not otherwise available” has been construed by the Attorney General to include requests for voluminous open records. The written response shall include a citation to KRS 61.872(5) and a “detailed explanation of the cause for delay”. The demands of other public duties does not constitute a legally recognized basis for postponing release of the records. The written response shall also state the earliest date and time the records will be available. The written response to a request to inspect such records shall identify the place at which the records will be available for inspection in suitable facilities. The written response to a request for copies of such records by mail shall state that the requester will be notified of the actual cost of copying and postage on the same day the records are located, retrieved, and reviewed and that the records will be mailed upon prepayment of the copying and postage charges.
   (D)   The absence of the City Clerk or the City Clerk’s designee does not suspend or delay the three- day deadline for final written response.
   (E)   The response shall be issued by the City Clerk or the City Clerk’s designee, or under the Clerk’s or designee’s authority. The city shall maintain a comprehensive open records register to track all incoming open records requests and the disposition of those requests.
   (F)   The city’s final written response to a public records request, issued on the third business day, shall notify the requester that the request will be granted or denied. A written response to a request to conduct onsite inspection of open records, notifying the requester that the request is granted, shall advise the requester that the records are immediately available for inspection during the city’s regular business hours at a specifically designated location where suitable facilities are available.
   (G)   The city’s final written response to a request for copies of open records by mail, notifying the requester that the request is granted, shall advise the requester that the open records will be mailed upon receipt of payment to “City of Covington” in a specified amount based on the actual cost of reproduction and postage cost.
   (H)   The city’s final written denial of a request to inspect or obtain copies of exempted public records shall advise the requester that the request is denied, identify one or more of the 16 statutory exemptions found at KRS 61.878(1 )(a) through (p), and provide a detailed explanation of how the exemption(s) apply to the records, or any portion thereof withheld. The city recognizes that it has the burden of proof in sustaining denial of an open records request in an administrative challenge to the Kentucky Attorney General and the burden of proof in sustaining the denial in a judicial challenge in the courts.
   (I)   The city is not, in general, required to grant a request for information, as opposed to a request for existing public records. For example, “What were the results of the city’s last audit” is an improper request that the city is not obligated to grant. “Please provide a copy of the city’s most recent audit” is a proper request that the city is obligated to grant.
   (J)   If the requester seeks records that the city does not now have, nor ever had, custody or control of, the city shall notify the requester of this fact in writing. If the identity of the actual custodial agency is known, the city shall furnish the requester with the name and location of the official custodian of the agency’s public records.
   (K)   If the requester seeks city records that cannot be located, have been prematurely destroyed through error or inadvertence, or were required by law to be created but were never created, the city shall provide the requester with a candid explanation for the unavailability of the records. Destruction of a public record after a request is received is wholly impermissible and may constitute a violation of KRS 61.991(2)(a), relating to willful concealment or destruction of a public record and punishable as a Class A misdemeanor, or a violation of KRS 519.060(1)(b), relating to tampering with public records and punishable as a Class D felony.
   (L)   Records that originated in another public agency but are in the city’s custody as a “casual possessor” must be treated as city records unless state or federal law expressly require otherwise. The city shall respond to a request for such records as it would respond to any other records request but may wish to consult with the agency from which it obtained the records to ascertain if there is a legally supportable claim for exemption that the city should assert.
   (M)   (1)   The city may deny a public records request that imposes “an unreasonable burden in producing public records” or “repeated requests” that the City Clerk or the City Clerk’s designee “has reason to believe are intended to disrupt other essential functions of the public agency based upon clear and convincing evidence” of an unreasonable burden or intent to disrupt essential functions.
      (2)   The courts have recognized that clear and convincing evidence is a “high proof threshold” but have not indicated what evidence meets this threshold. The Attorney General focuses on the number of records involved, or a good faith estimate of the number of records involved, the difficulties associated with locating, retrieving, reviewing, and redacting the records, whether one or more of the exemptions to public inspection require the redaction of particular information in the records, the number of staff hours, or a good faith estimate of the number of staff hours, required to fulfill the request, and the approximate cost to the agency based on these factors. A detailed description of the burden that includes this information shall be included in any denial based on unreasonable burden. Specific proof of bad faith, such as duplicative requests or requests that the agency grants but the requester never picks up, shall be included in any denial based on intentional disruption of essential agency functions. KRS 61.872(6) should only be invoked to deny access to public records in the most extreme and flagrant cases.
   (N)   The city shall, upon payment of a reasonable fee as described in § 37.06, provide a requester with a copy of any open record it has permitted the requester to inspect. Inspection and copying are corollary rights.
(1984 Code, § 37.05)  (Ord. O-14-19, passed 6-11-2019)
Statutory reference:
   Similar provisions, see KRS 61.872(3)(b), (4), (5), (6), 61.874(1), 61.880(1), (2)(c), 61.882(3)