Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy violated the Open Records Act in responding to Parramore Sanborn's request for access to records and information relating to the Lincoln County Fund. Based on the Public Advocate's failure to articulate the basis for denying Mr. Sanborn access to the records he seeks in terms of the requirements of the Open Records Act, and to support that denial by proof, we find that the Department violated the Act in withholding records relating to the Lincoln County Fund from Mr. Sanborn.
On October 18, 1998, Mr. Sanborn submitted a written request to the Department of Public Advocacy:
to see the expenditure payments for the Lincoln Fund from date of establishment until present. This expenditure would include all payments made from that fund and to whom payments were made. As well, what client received the benefit of that expenditure, the ammount [sic] of the expenditure paid out, the purchase order and the dates of these expenditures. If possible, which judge order these expenditures.
Shortly thereafter, the Department's Personnel Administrator, Roy Collins, responded to Mr. Sanborn's request, advising him that a thorough review of the request would be necessary, and that a decision was forthcoming. On November 30, Mr. Sanborn notified Mr. Collins that although a month had elapsed since he submitted his request, he would wait two more weeks for the Department's response. If, Mr. Sanborn noted, the records and information identified in his request were not released to him on or before December 16, he would pursue his remedies through an appeal to the Attorney General. Having apparently received no response to his November 30 letter, Mr. Sanborn initiated this appeal on December 21, 1998.
In a letter to this office dated January 5, 1999, the Department of Public Advocacy, through General Counsel J. Vincent Aprile, denied Mr. Sanborn's request. Mr. Aprile explained that "the Lincoln County Fund is a phrase used to denote the Department of Public Advocacy's former statutory obligation, which expired July 15, 1998 with the amendment of KRS 31.200, to 'bear the expenses for [defense] experts for indigent persons confined in a state correctional institution regardless of the time or location of the crime.'" Continuing, Mr. Aprile described the nature of these records:
The Department of Public Advocacy's budget for Lincoln County Fiscal Court expenses in previous bienniums was $ 25,000.00 per year. To insure that amounts paid from public funds by the Department for defense expert witnesses were justified, courts, whether at trial or on post-conviction review, must authorize such services in advance, by order, and, once the service has been performed and the bill has been submitted, direct, by order, the Department to pay the amount of the bill approved by the court. The trial court, rather than the Department, was the appropriate authorizing and approval entity on defense expert funding issues in individual cases, even where the Department was ultimately liable for those expenses. KRS 31.185; KRS 31.200(4).
As a result, the information sought by Mr. Sanborn is information that the Department has a responsibility to keep confidential. In most instances the orders in question are clearly marked indicating that they are sealed records and/or ex parte orders of the courts in question. Sometimes the orders are silent as to the identity of the expert and that information has been provided by the indigent client's public defender counsel.
Citing OAG 92-119, OAG 91-121, and OAG 89-22, Mr. Aprile argued that because the records identified in Mr. Sanborn's request "fall within the terms of a protective order entered by a court, they are excluded from public inspection. He explained:
All "Lincoln County Fund" orders are treated by the Department of Public Advocacy as being under a protective order, regardless of whether the order reflects that it is labeled sealed or ex parte or both. The Department does not expend financial resources or personnel power to comb trial court records, not in the Department's possession, to determine whether other orders in the record seal or otherwise protect the funding orders provided to the Department for payment. Additionally, the confidentiality of the funding order may be a pending appellate issue. See Baze v. Commonwealth, Ky., 965 S.W.2d 817, 826 (1997). Such a procedure would create "an unreasonable burden in producing public records" on this agency. KRS 61.872(6).
Certain of the funding orders in question originated in proceedings, such as state post-conviction actions, which are now concluded. The existence or viable possibility of a federal habeas corpus proceeding keeps those funding orders confidential. See Skaggs v. Redford, Ky., 844 S.W.2d 389, 390(1992).
On this basis, Mr. Aprile asserted that Mr. Sanborn is not entitled under the Open Records Act to records reflecting "the expenditure payments for the Lincoln fund from the date of establishment until present."
On a more fundamental level, Mr. Aprile questioned the Attorney General's jurisdiction to render a decision in Mr. Sanborn's case, "other than one acknowledging its lack of jurisdiction to review the [appeal]." It was his position that the open records review process would compromise the confidentiality of the orders.
We begin by acknowledging that Mr. Aprile's concern about the apparent conflict arising from the circumstances of this appeal. Nevertheless, this is by no means the first time that the Attorney General has been asked to review an appeal under circumstances similar to the one at issue. In those opinions it was determined the Attorney General was required by statute to rule on such appeals. See for example, OAG 92-10, OAG 91-35, and OAG 78-639. Unless and until this issue is brought to the attention of the General Assembly, and provision is made for independent review under circumstances such as those presented here, the Attorney General may not delegate his statutory duty, but must proceed with a review of the appeal.
We find that the Department failed to articulate a legally supportable basis for denying Mr. Sanborn access to records documenting expenditures from the Lincoln County Fund under the Open Records Act. Mr. Aprile describes these records as funding orders, some of which are placed under seal, some of which are labeled ex parte, some of which are both, and some of which are apparently neither. In any case, he indicates that the Department treats all funding orders as confidential, taking the position that it need not "expend financial resources or personnel power to comb trial court records, not in the Department's possession, to determine whether other orders in the record seal or otherwise protect the funding orders provided to the Department for payment." He does not indicate if records other than the funding orders themselves exist, such as a budget, account book, or ledger, which document the expenditure of funds, but which do not reveal defense theories or strategies. 1 Nor does he indicate, in specific or general terms, the number of records implicated by the request and the amount of time Department employees would expend in locating and retrieving them so as to successfully build a case under KRS 61.872(6) that Mr. Sanborn's request is unreasonably burdensome. Finally, Mr. Aprile does not articulate a basis for denying access to the orders under
Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992) beyond a bare allegation that some of the orders originated in proceedings that are now concluded and "the existence or viable possibility of a federal habeas corpus proceeding keeps [them] confidential. "
Mere invocation of an exception without a supporting explanation does not sustain the Department's burden of proof. As we have so often noted:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests,] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof.
95-ORD-61, p. 5 (emphasis in original). And, as the Kentucky Court of Appeals held, in construing the agency's obligations under KRS 61.880(1):
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmonson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996).
In closing, we note that the Department of Public Advocacy failed to comply with the procedural requirements of the Act. KRS 61.880(1) sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
Mr. Sanborn submitted his request on October 18, 1998. As of the date he initiated his appeal to the Attorney General, December 21, 1998, he had not received final notification from the Department indicating that his request was denied. The procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125, p. 5. We urge the Department to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. If an appeal is filed, the circuit court will determine the matter de novo, and this decision will in no way prejudice either of the parties. KRS 61.882(3). Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 It should be noted that Mr. Sanborn requested access to "expenditure payments" from the Lincoln County Fund, and not specifically funding orders.