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 Fayette County Attorney's Office violated provisions of the Open Records Act in the disposition of John O. Sheller's June 13, 2001, request for records relating to the dismissal, with prejudice, of criminal action number 00MO4626, Fayette District Court, Criminal Branch, Second Division, including witness statements located in the prosecution case file. For the reasons that follow, we conclude that Fayette County Attorney Margaret Kannensohn's response was procedurally deficient, but substantively correct. Although the County Attorney cannot make available for inspection records that have been destroyed, the failure of her office to retain criminal prosecution case files for two years, as required by the Records Retention Schedule County Model-County Attorney, may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes.
As noted, Mr. Sheller submitted his request on June 13, 2001, seeking access to "any documents which lend assistance in understanding the dismissal of criminal action number 00MO4626, with prejudice, on September 22, 2000," and "any statements by witnesses" in the file. In the third paragraph of his June 13 letter, Mr. Sheller indicated that his request was made "pursuant to the Kentucky Open Records Act. " Having received no response to his request, on July 25 Stephanie Thomas, a paralegal in Mr. Sheller's office, inquired about the status of the request by fax. Sometime thereafter, Assistant County Attorney Todd Henning "talked extensively with a paralegal of Mr. Sheller's office and advised her that [the County Attorney's] office destroys all files of dismissed cases but that a written record and audio tapes existed in the clerk's office of all proceedings . . . ." Mr. Sheller asserts that Ms. Thompson initiated the discussion with Mr. Henning on August 15, 2001. Ms. Kannensohn does not indicate on what date, if not August 15, the discussion occurred. Dissatisfied with the Fayette County Attorney's disposition of his request, Mr. Sheller initiated this open records appeal on August 31, 2001.
In a response directed to this office following commencement of the appeal, Ms. Kannensohn defended her office's actions. She maintained that the information Mr. Henning furnished Ms. Thompson by telephone "complied with Mr. Sheller's requests." Moreover, she commented:
KRS 61.878 states in part ". . . records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action." According to the statute even if a file existed, we could not provide it.
It was Ms. Kannensohn's position that no matter how reasonable the request, "we do not wish to set any precedent contrary to our reading of the law." In closing, she acknowledged that her office was "remiss in not having relayed our legal position to Mr. Sheller sooner than this," but noted "as a point of honor," that a review of his June 13 letter "confirms that [it] was not couched in terms of a formal open records request."
It is the opinion of this office that regardless of whether the request was, or was not, "couched in terms of a formal open records request," and we believe it was, the Fayette County Attorney's office was statutorily obligated to respond in writing, and within three business days, to Mr. Sheller's request and that its failure to do so constituted a violation of KRS 61.880(1). With reference to the sufficiency of a records request, this office noted, in 99-ORD-148, that even if a request "is not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long] as it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. When such a request is tendered, the statutory requirements codified at KRS 61.880(1) are triggered, and an agency is obligated to respond in a proper and timely fashion.
KRS 61.880(1) 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 compl[y] with the requirements of the Act . . . ." Id. The failure to issue any response constitutes a clear violation of KRS 61.880(1).
Mr. Sheller's June 13 letter satisfied the minimum requirements of a properly framed open records request found at KRS 61.872(2) insofar as it was in writing, described the records to be inspected, was signed by the applicant, and contained his name printed legibly thereon. In addition, the request directly referenced the Open Records Act at paragraph three. This being the case, the Fayette County Attorney's Office was obligated to issue a timely written response. "The duty to properly respond does not place an undue burden upon public servants," the Court of Appeals recently observed, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." George William Sykes v. James Kemper, Ky. App., 2000-CA-000714-MR (3/30/01), pet. for rehearing denied July 20, 2001 (unpublished opinion) . 1 An oral response communicated by telephone some two months after submission of the request did not satisfy the requirements of KRS 61.880(1).
The Fayette County Attorney's denial of Mr. Sheller's request is premised on the non-existence of the criminal prosecution case file. Mr. Henning orally advised Ms. Thompson, and Ms. Kannensohn confirmed, that the County Attorney's Office "destroys all files of dismissed cases . . . ." Neither indicates the time frame for records destruction, but it is apparent that it is less than one year, criminal action number 00MO4626 having been dismissed on September 22, 2000, and Mr. Henning having confirmed destruction of the case file prior to August 15, 2001. Whatever the application of KRS 61.878(1)(h) to that file while it existed, the County Attorney obviously cannot furnish Mr. Sheller with records that no longer exist. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-65; 96-ORD-41; 01-ORD-11. Our decision in an open records appeal is generally limited to two questions: Whether the public agency has in its possession the document requested, and if it does, whether the document is subject to public inspection. The Fayette County Attorney's failure to produce for inspection records that have been destroyed therefore does not constitute a substantive violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Our review of the Records Retention Schedule - County Attorney Model, the relevant portion of which is enclosed, indicates that the retention period for criminal prosecution case files is at least two years after the case is closed, and longer if the case is appealed. Such records fall within Series No. L2893, and are deemed "vital records" that cannot be destroyed simply because the case is dismissed. The record before us demonstrates that the criminal prosecution case file pertaining to criminal action number 00MO4626 was destroyed less than one year after the case was dismissed. In light of this discrepancy, we are obliged to refer this matter to the Department for Libraries and Archives for further inquiry as that agency deems warranted.
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 proceedings.
John O. ShellerSmith & Smith300 South, First Trust Centre200 S. Fifth StreetLouisville, KY 40202
Margaret H. KannensohnFayette County Attorney163 W. Short Street, Ste. 700Lexington, KY 40507-1016
Richard BeldingDirectorPublic Records DivisionDepartment for Libraries and Archives 300 Coffee Tree RoadP.O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 Although George William Sykes v. James Kemper is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request not clearly identified as such.
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