Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Department of Public Advocacy (DPA) violated the Open Records Act in responding to the April 2, 2001 open records request of Julius Black for the release of "all of the client's files concerning cases nos. 92-CR-03261 and 94-CR-00142, including attorney work product and attorney-client material [reflexive] of the deliberative process and contained in inter-agency correspondence, regarding the [undersigned] and the above noted cases." In addition, Mr. Black requested the name of each attorney from the Department of Public Advocacy that Judge Abramson, Jefferson Circuit Court, had appointed to represent him.
By letter dated April 5, 2001, Larry Beale, General Counsel, DPA, responded to Mr. Black's request, advising him:
This office is in receipt of your open records request dated April 2, 2001 and received in this office on April 4, 2001 requesting the release of client files concerning cases nos. 92-CR-03261 and 94-CR-00142. Client files are the sole possession of the attorney/office from which representation is provided. You state in your letter of the appointment of a public defender by Judge Abramson of Jefferson Circuit Court. Presuming that this was a Jefferson Circuit Court case and presuming that the Louisville/Jefferson County Public Defender's Office was appointed, those records would be in the possession of the Louisville/Jefferson County Public Defender's Office.
Please direct your request to Dan Goyette, Louisville Public Defender's Office, 700 West Jefferson Street, Louisville, Kentucky 40202.
Further, I wanted to notify you that client records are not public records under the Open Records Act. These records are confidential and can only be turned over to the client under the attorney client privilege. If these records pertain to you, you would simply need to write the attorney or the office where the records are housed and request the entire record in your case.
In his letter of appeal, Mr. Black enclosed a March 28, 2001 letter from his attorney Rob Eggert to the DPA, which stated:
I am writing concerning a former client by the name Julius Black. I represented Mr. Black in the United States District Court for the Western District of Kentucky on a drug conspiracy charge in which Mr. Black was facing a potential life sentence as a career criminal. In the course of representing Mr. Black in that case, I filed a motion to vacate his conviction in the Jefferson Circuit Court Division Three (3) in case numbers 92CR003261 and 94CR00142. Following an evidentiary hearing, Judge Lisabeth Hughes-Abramson denied the motion to vacate. Her Order denying the motion was entered March 27, 2000. Subsequently, the Honorable Larry Simon and I, who represented Mr. Black, moved to withdraw as counsel for Mr. Black in his post-conviction proceedings in Division Three. Judge Abramson sustained the motion and appointed the Department of Public Advocacy to represent Mr. Black on appeal. Mr. Black was sentenced in federal court to 22 years in prison and is presently at the Federal Correctional Institution in Manchester, Kentucky. Periodically, Mr. Black contacted me to inquire about the appeal of Judge Abramson's order denying his motion to vacate. Obviously, a successful appeal would greatly benefit Mr. Black because he would no longer be a career offender.
Mr. Eggert indicated he had contacted the DPA several months prior and had been advised that the Department had withdrawn the appeal, after sending notice to Mr. Black at Northpoint. Mr. Eggert advised DPA that Mr. Black was not incarcerated at Northpoint nor had he been there for some six or seven years. Mr. Eggert stated that he was assured that DPA would file a motion to reinstate Mr. Black's appeal with the Court of Appeals, as Mr. Black's appeal had been dismissed without his knowledge, permission or approval.
In his letter of appeal, Mr. Black stated that the appellate case number that DPA was handling was file no: 2000-CA- 001019 and was assigned to Dennis Stutsman, Assistant Public Advocate.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Beale provided this office with a response to the issues raised in Mr. Black's appeal. In his response, Mr. Beale stated that DPA did not deny Mr. Black's request. He reiterated that the Department was not in possession of the sought after records concerning cases # 's 92CR003261 and 94CR00142; that the cases apparently arose in Jefferson County; and the requested records would be maintained by the Louisville/Jefferson County Public Defender's Office or the attorneys that represented Mr. Black in those cases. Mr. Beale again advised that Mr. Black should direct his request for the client files or court records to his attorney(s) or to the clerk of the particular court wherein his case(s) were lodged.
Addressing Mr. Black's request for records related to his appeal to the Court of Appeals, no. 2000-CA-001019, Mr. Beale again advised him to direct his requests to records related to that action to his attorneys, Dennis Stutsman and/or John Palombi, DPA, who had formerly handled his appeal in that case, or to the Clerk of the Kentucky Court of Appeals, which maintained a record in his cases.
By telephone conversation with the undersigned, Dennis Stutsman confirmed that the DPA did not have the client records of Mr. Black's cases as the DPA did not represent Mr. Black in the trial of cases # 's 92CR003261 and 94CR00142 in Jefferson County.
We are asked to determine whether the responses of the DPA constituted a violation of the Open Records Act. For the reasons that follow, we find that the responses were proper and not in violation of the Act.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In Mr. Beale's letter of April 5, 2001, Mr. Black was advised that the DPA did not have the client files from trial of cases # 's 92CR003261 and 94CR00142, a fact that was confirmed by Mr. Stutsman. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Moreover, as noted above, Mr. Black was advised as to where he might go to obtain the requested records, if they exist. KRS 61.872 (4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Mr. Black was advised that client files related to his trials in Jefferson County Circuit Court would be maintained by his trial attorneys, the Louisville/Jefferson County Public Defender's Office, or the clerk of the court in which the trials were held. Records related to his appeal in 2000-CA-001019, should be directed to his attorneys at PDA, who had formerly handled his appeal in that case, or to the Clerk of the Kentucky Court of Appeals, which maintained a record in that case. This was insubstantial compliance with KRS 61.872(4) and, thus was not a violation of 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. 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.
Julius Black # 06980FCI Manchester, W/AP.O. Box 4000Manchester KY 40962-4000
Larry BealeGeneral CounselDepartment Of Public Advocacy100 Fair Oaks Lane, Suite 302Frankfort KY 40601
Dennis StutsmanAppellate BranchDepartment Of Public Advocacy100 Fair Oaks Lane, Suite 302Frankfort KY 40601
Dan GoyetteLouisville/Jefferson Co. Public Defender's Office200 Civic Plaza719 West Jefferson StreetLouisville KY 40202