Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy (DPA) timely responded to the open records request of Shamil Muquit dated March 19, 2002, addressed to his trial counsel, Michael L. Williams, for a copy of his attorney/client case file pertaining to indictment No. 99-CR-00490.
By letter dated March 27, 2002, Larry D. Beale, General Counsel, DPA, responded to Mr. Muquit's request, advising him:
Your request dated March 19, 2002 addressed to the Hon. Michael L. Williams of the Kenton Public Defender's Office has been forwarded to the Administrative Offices of the Kentucky Department of Public Advocacy and reviewed by the undersigned as a request for open records. We acknowledge receipt of March 26, 2002.
On review, it is our opinion that your request does not come within the purview of those public records required to be disclosed to the public pursuant to KRS Chapter 61, The Kentucky Public Records Act. Nor is the agency authorized by its provision of legal representation to clients to release confidential and private "case" files to the public upon request.
You may, however, upon arrangement with your DPA attorney, obtain records as indicated in your request to the extent available and not previously provided.
In his letter of appeal, Mr. Muquit asks this office to determine whether the response of the DPA was timely under the Open Records Act. In addition, Mr. Muquit states that the DPA had not responded to a second request for the records he filed on April 1, 2002. From the facts before us, we are unable to determine with precision whether a procedural violation of the Act of the first request occurred. A failure to respond to an open records request would constitute a violation of the Act. With that in mind, we make the following observations relative to the DPA policy relative to the processing of open records requests.
KRS 61.880(1) provides, in pertinent part:
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.
In 95-ORD-105, we discussed KRS 61.880(1) and an agency's duties and responsibilities in responding to an open records request. In that decision, we stated:
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
The DPA's response acknowledged receipt of Mr. Muquit's request, dated March 19, 2002, on March 26, 2002, indicating that it had been forwarded to the Administrative Office by Michael L. Williams of the Kenton Public Defender's Office. The DPA responded to the request by letter dated March 27, 2002.
DPA's response does not indicate the date Mr. Williams received Mr. Muquit's request, thus we are unable to determine the precise time sequence relative to the receipt of the request and the agency response. The response indicates that when the Kenton County Public Defenders Office receives an open records request, it is forwarded to the DPA Administrative Office for response.
In 98-ORD-20, in discussing Eastern Kentucky Correctional Complex's policy of processing open records request through its open records coordinator, observed:
Although the general guidelines governing agency response to an open records request are found at KRS 61.880(1), this office has recognized that "an inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. " 95-ORD-105, p. 5. Thus, while "all persons have the same standing to inspect and receive copies of public records, . . . an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " Id. Nevertheless, a correctional facility may not "adopt and implement records policies which unreasonably delay [or restrict] access." Id. We believe that Corrections policy 6.1 is consistent with the procedural requirements of the Act and does not unreasonably delay or restrict inmate access to public records.
KRS 61.870(5) defines the term "official custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control. " KRS 61.872(2) states that as a precondition of processing an open records request, "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." KRS 61.876(1)(b) requires the public agency to post rules and regulations which conform to the Open Records Act and are aimed at providing full access to public records, and which identify the official custodian of the agency's records. Finally, KRS 61.880(1) provides that the agency's response to an open records request "shall be issued by the official custodian or under his authority, and it shall constitute final agency action." When read together, these provisions mandate the appointment of an official custodian of records whose function it is to process all open records requests which the agency receives. As we noted in 93-ORD-134, "we see nothing wrong with the . . . policy of processing open records requests through . . . [one office]. In our view, this policy insures uniformity and adherence to the law." 93-ORD-134, p. 10, 11. However, in adopting this policy, "it is incumbent on EKCC to streamline its policies by educating its employees . . . on the importance of providing a timely response, as well as timely access to records." 95-ORD-105, p. 5. Assuming that all departments at EKCC apply this policy in a consistent manner with the goal of insuring a timely response and timely access, and that the inmate population had been advised of it, we believe that EKCC may properly require all records requests to be routed through the records coordinator's office. (Footnote omitted)
Thus, if an agency chooses to have all open records requests routed through a central records custodian, it still must comply with the requirement of KRS 61.880(1) of responding to the request within three business days after the agency's receipt. 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. It is incumbent on DPA to streamline its policies by educating its employees on the importance of providing a timely response, as well as timely access to records. If, in fact, Mr. Muquit received DPA's response outside the time required by KRS 61.880(1), it would constitute a procedural violation of the Open Records Act. Likewise, if the agency has not yet responded to Mr. Muquit's second request, it should timely due so as required by KRS 61.880(1).
In addition, DPA did not deny Mr. Muquit's request, but explained to him that since the records that he requested were his attorney/client case file, he did not need to proceed through the mechanism of an open records request, as would the general public. DPA further explained that he could obtain the records he sought by making arrangements with his DPA attorney. Accordingly, we find no violation of the Open Records Act in this regard.
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.