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 Kenton County Detention Center violated the Open Records Act in failing to respond to Chris Henson's May 1, 2002 request for a copy of the Center's jail roster excluding cell numbers and locations. For the reasons that follow, we find that the Center violated KRS 61.880(1) in failing to respond to Mr. Henson's request. Further, we find that because the Center advances no argument in support of the withholding of the redacted jail roster, it must disclose that record.
In his May 1 request, Mr. Henson acknowledged that for reasons of inmate safety and jail security the Center could properly redact cell numbers and locations from the roster, but maintained that 02-ORD-082 supports his view that disclosing the names of the inmates only will pose no threat to safety or security. Having received no response to his request, Mr. Henson initiated this appeal on May 15, 2002.
Mr. Henson's appeal reached this office on May 20, 2002, and on May 21 we issued a notification of appeal to Assistant Kenton County Attorney Brandon Voelker and Kenton County Attorney Garry L. Edmondson. In that notification, we advised that, pursuant to 40 KAR 1:030 Section 2, they could respond to Mr. Henson's appeal on or before May 28, 2002. We received no response to this notification of appeal, and have not been advised that the Center has taken any subsequent action in this matter.
The Kenton County Detention Center's failure to respond to Mr. Henson's May 1 request 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.
The Kenton County Detention Center had two opportunities to comply with KRS 61.880(1), first by responding to Mr. Henson's original request and second by responding to his request upon receipt of this office's notification of appeal. The agency failed to do so thereby violating the Open Records Act.
Because the Kenton County Detention Center did not respond to Mr. Henson's request, or this office's notification of appeal, it advanced no legal basis for denying that request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency . . . ." The Center's failure to respond to the open records request is tantamount to a denial of that request without specific support in the form of "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. " KRS 61.880(1). The fact that a similar, but not identical request, was the subject of an earlier open records decision n1 of this office does not relieve the Center of its statutory duty under KRS 61.880(1), or shift the burden of proof to the complaining party under KRS 61.880(2)(c). Because the Kenton County Detention Center advanced no argument in support of its decision to withhold the redacted jail roster, we find that it must disclose the redacted roster to Mr. Henson.
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.
Chris Henson1939 Augustine AvenueCovington, KY 41014-1117
Brandon VoelkerAssistant Kenton County Attorney303 Court Street, Rm. 307Covington, KY 41011
Garry L. EdmondsonKenton County Attorney303 Court Street, Rm. 307Covington, KY 41011