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 Franklin County Correctional Complex violated the Open Records Act in its handling of George Sykes's June 23, and June 28, 1999, requests for a copy of his "arrest record for child support from the dates of 5/12/92 thru 7/23/92 also between 1/17/93," also described as "arrest record for George W. Sykes . . . between dates of April 1992 and September 1992." Mr. Sykes received no response to his request, prompting him to initiate this open records appeal. For the reasons that follow, we conclude that the Franklin County Correctional Complex's failure to respond to Mr. Sykes's requests constituted a violation of the Open Records Act. However, its failure to produce the records identified in that request is attributable to the ambiguity of the request, and cannot be deemed a violation of the Act.
Upon receipt of this office's notification of an open records appeal, Franklin County Jailer James Kemper, Jr., issued a written response in which he stated that Mr. Sykes's request "was never filed as an open records request, and what he appears to be requesting are court records." In support, Mr. Kemper attached a copy of Mr. Sykes's June 23 letter. Additionally, he noted that records pertaining to Mr. Sykes may not be organized by a particular offense, "especially where there are multiple charges," and the Franklin County Correctional Complex "cannot assure complete accuracy of said records." Mr. Kemper suggested that Mr. Sykes redirect his request to the district court clerk.
We begin by noting that Franklin County Correctional Complex's failure to respond to Mr. Sykes's June 23, and June 28, 1999, requests in a proper and timely fashion constituted a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
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.
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 857 (1996). As noted above, that response must be in writing and issued within three business days of receipt of the request. "A limited and perfunctory response," the Court concluded, does not "even remotely comply with the requirements of the Act. . . ." Id. The failure to issue any response is especially egregious.
Although Mr. Sykes's first request was not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfied the requirements of KRS 61.872(2), relative to written application, insofar as it described the records to be inspected, and was signed by the applicant, with his name printed legibly thereon. Assuming, for the sake of argument, 1 that Mr. Sykes could be required to use Form B-010-1, "Request to Inspect Public Records, Re KRS Ch. 61," he did, in fact, use the form in his June 28 records request. Mr. Kemper offers no explanation for the failure of the Franklin County Correctional Complex to respond to this request. It is the opinion of this office that FCCC's failure to respond constituted a violation of KRS 61.880(1).
We do not, however, find that FCCC's failure to produce the records identified in Mr. Sykes's requests constituted a violation of the Open Records Act. In both instances, he requested arrest records rather than records of time served in the facility. In a follow-up letter directed to this office, Mr. Sykes indicates that it is "records of [his] time spent in jail" that he wishes to obtain. Mr. Kemper maintains that FCCC is not the custodian of Mr. Sykes's arrest record or rap sheet. FCCC is, of course, custodian of records reflecting the time Mr. Sykes served in the facility, and obliged to furnish him with copies of these records upon prepayment of reasonable copying charges. If, indeed, these are the records Mr. Sykes seeks, we urge him to resubmit his request to Mr. Kemper. Mr. Kemper, in turn, is obligated to furnish him with all existing records which are responsive to his request, regardless of how they are organized or maintained. In so doing, Mr. Kemper does not, and is not required to, guarantee their accuracy. See 97-ORD-183 (holding "Disclosure of public records under the Open Records Act does not constitute a guaranty of the accuracy of all information contained therein").
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. 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 The Attorney General has firmly established that a public agency cannot require the use of a specific open records request form. See, for example, 96-ORD-19 and 94-ORD-101.