Request By:
Mr. Douglas Garrett
Probation and Parole Office
400 Legal Arts Building
200 South Seventh Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Keith Phillips has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy various documents in the custody of your office and the Corrections Cabinet.
This office has not been furnished with a copy of Keith Phillips' letter of request to you but he evidently sent some kind of letter to you early in January of 1988.
You replied to Keith Phillips in an undated letter and the body of your letter in its entirety stated as follows: "All other documents requested are closed under KRS 61.876(3)."
In his letter of appeal which was received by this office on January 20, 1988, Keith Phillips maintains that he had asked for copies of three groups of documents. He states that he received your letter on January 14, 1988, and the only document you sent him was one designated as "Results of Preliminary Parole Revocation Hearing," dated September 8, 1987, which his attorney had previously sent him.
OPINION OF THE ATTORNEY GENERAL
A public agency and the officials and employees of that agency have numerous duties and obligations relative to the handling of a request to inspect and copy public records. Some of those duties and obligations are set forth in KRS 61.880.
KRS 61.880(1) provides in part that each public agency, upon a request to inspect records pursuant to the Open Records Act (KRS 61.870 to KRS 61.884), shall determine within three work days after the receipt of such a request whether to comply with the request and shall notify the requesting party in writing within the three day period of its decision. Furthermore, an agency response denying, in whole or in part, the request to inspect a record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. See OAG 87-60 and OAG 87-83, copies enclosed.
KRS 61.880(2) states in part that a copy of the written response denying inspection of the requested record shall be forwarded immediately by the agency to the Attorney General's Office. If requested by the person seeking to inspect the records, the Attorney General shall review the denial and issue a written opinion to the public agency involved, stating whether the public agency acted consistent with the provisions of the Open Records Act. The statute further provides that the burden of proof in sustaining the action shall rest with the public agency.
This office, under the Open Records Act, is not concerned with records and documents which have been made available for public inspection but, rather, with those documents which have not been made available for public inspection. In this case, however, your undated letter of response to Keith Phillips is totally inadequate and complies with none of the statutory requirements discussed above. It cannot be precisely determined what records you have refused to make available and the only statute you refer to has no applicability to the situation at hand. About all that is available is Keith Phillips' letter of appeal to this office and more than that is needed if we are to determine whether particular records have been properly withheld from public inspection.
It is, therefore, the opinion and decision of the Attorney General that within three days of the receipt of this opinion you prepare a proper written response to the original request of Keith Phillips, following the provisions set forth in KRS 61.880(1) and (2). You should specifically state those records, if any, which you are withholding from his inspection and the particular statutory exception to public inspection relied upon and how it applies to the record which is being withheld. If you deny access to any of the requested records, a copy of your letter must be sent promptly to the Attorney General's Office.
A copy of this opinion and decision is being sent to the requesting party, Keith Phillips. If you and the Corrections Cabinet disagree with the opinion and decision or decide not to comply with the findings and conclusions expressed herein, you may initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5).