Request By:
Roberta M. Harding
360 Colony Blvd.
Lexington, KY 40502Stephen Durham
Department of Corrections
Office of General Counsel
2439 Old Lawrenceburg Road
Frankfort, KY 40602-2400Brian Logan
Department of Corrections
Office of General Counsel
2439 Old Lawrenceburg Road
Frankfort, KY 40602-2400
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 Corrections violated the Open Records Act in the disposition of Roberta M. Harding's August 22, 2001 request for information and records pertaining to execution by lethal injection in the Commonwealth of Kentucky. For the reasons that follow, we find that the Department's response was procedurally deficient but substantively correct.
In her August 22 request, Ms. Harding asked that the Department send her:
1. the names of the pharmaceuticals/ drugs to carry out executions by lethal injection in the Commonwealth of Kentucky;
2. the names of the manufacturers and distributors of each of the pharmaceuticals listed in response to request number 1 above;
3. the precise dosage of each pharmaceutical listed in response to request number one above that is administered to the condemned person for execution purposes; and
4. the execution protocol used in executions by lethal injection in the Commonwealth of Kentucky.
On August 28, Department of Corrections General Counsel, Stephen P. Durham, denied Ms. Harding's request, advising her, "At this time, the Department declines to offer the information you seek." He did not elaborate.
Shortly thereafter, Ms. Harding submitted a written request for reconsideration of the Department's position to Mr. Durham. In the alternative, she asked that the Department provide her with the following:
1. an elaboration of the reasons for declining to disclose the information . . . and
2. information detailing the appeals process for the denial of a request for information pursuant to the Freedom of Information Act.
Having received no response to this request, Ms. Harding initiated an open records appeal on November 20, 2001.
In a supplemental response directed to this office following commencement of Ms. Harding's appeal, Department of Corrections Staff Attorney, Brian A. Logan, elaborated on the Department's position. Mr. Logan explained:
In Ms. Harding's initial request, she asked the Department of Corrections to provide her with the names of the pharmaceuticals/ drugs used to carry out executions by lethal injection in the Commonwealth of Kentucky; the names of the manufacturers and distributors of each pharmaceutical listed; the precise dosage of each pharmaceutical administered; and the execution protocol used in execution by lethal injection in the Commonwealth of Kentucky.
Ms. Harding's original request was not for records maintained by the Department of Corrections. It was, instead, a request for information. Her requests do not fit the definition of public records as defined by KRS 61.870(2). As such, the Department of Corrections is not bound by the Kentucky Open Records Act to supply Ms. Harding with the information that she has requested. Additionally, assuming that a protocol for execution by lethal injection even exists, such a policy would be exempt from disclosure under KRS 197.025(1) as a threat to security. Furthermore, the Attorney General has previously determined that records containing procedures employed in an execution are exempt from disclosure. (97-ORD-51).
Mr. Logan acknowledged that the Department erred in failing to identify the specific exception authorizing nondisclosure of the execution protocol.
The Department's original response was procedurally deficient. In virtually all material respects, Ms. Harding's request satisfied the requirements of KRS 61.872(2) 1 relating to written application to inspect public records. Ms. Harding signed her request, and her name was typewritten below. Although all but one of her requests were framed as requests for information rather than records, this did not excuse the Department from fully discharging its duties under KRS 61.880(1). The Attorney General has long recognized that "KRS 61.872(2) is satisfied if the written application contains . . . [the] applicant's signature, [the] applicant's name printed legibly, [and a] description of records to be inspected. " 94-ORD-101, p. 3, citing OAG 76-588. Public agencies cannot reject a request, or otherwise avoid their statutory duties, because the requester did not use a particular form or employ specific legal terminology. See also, 96-ORD-19, 99-ORD-148.
Those agency duties are codified at KRS 61.880(1) which 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 this provision, 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). "A limited and perfunctory response," the Court concluded, does not "even remotely compl[y] with the requirements of the Act. . . ." Id . A response that is devoid of citation to the legal authority upon which the agency relies, and an explanation of how that authority applies to the records withheld, does not satisfy the requirements of KRS 61.880(1) or the Court of Appeal's directive in Edmondson v. Alig . The Department's original response and failure to respond, in any fashion, to Ms. Harding's September 1 supplemental request violated KRS 61.880(1).
Nevertheless, we affirm the Department's denial of the August 22 request for the reasons articulated by Mr. Logan in his December 3, 2001 response. In an early opinion, the Attorney General recognized that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. On this basis, we have consistently held that public agencies are not statutorily obligated to honor requests for information as opposed to requests for public records. For example, in 93-ORD-51 this office held that the Open Records Act:
was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-335, OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the Law provides for inspection of reasonably identified records.
93-ORD-51, p. 3. Mirroring this view, in OAG 87-84 we observed:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3. These decisions were premised on the language of the statutes themselves, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added).
The Department of Corrections' refusal to honor Ms. Harding's request for information therefore did not constitute a violation of the Open Records Act. Ms. Harding may, however, wish to resubmit her open records request in the proper form, such as a request for invoices submitted by the manufacturers and distributors of pharmaceuticals/ drugs used to carry out executions by lethal injection to the Department, and contracts between the manufacturers and distributors and the Department. If no such records exist, the Department is obligated to affirmatively so state as it is with respect to Ms. Harding's request for "the execution protocol used in executions by lethal injections." The Department's equivocal response to the latter request was substantively deficient. See, e.g., 01-ORD-173 and authorities cited therein. A determination of whether 197.025(1), as construed in 97-ORD-51, applies to such a protocol obviously turns on the existence of a protocol and its particular contents.
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.
Footnotes
Footnotes
1 KRS 61.872(2) establishes the requirements for a written application to inspect public records. That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.