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 Public Advocacy violated the Open Records Act in the disposition of David R. Nichols's April 11 and May 23, 2003 requests for a copy of the transcript of his trial. 1 Mr. Nichols is represented by Assistant Public Advocate Dennis M. Stutsman in the appeal of his conviction, and his requests were directed to Mr. Stutsman. Those requests went unanswered prompting him to initiate this open records appeal by letter dated June 17, 2003. For the reasons that follow, we find that the Department's denial of Mr. Nichols's requests was procedurally deficient. Further, we find unpersuasive the arguments advanced in support of that denial by DPA's General Counsel in a letter to this office dated June 25, 2003, but affirm the denial of Mr. Nichols's request for the reasons set forth in the June 24, 2003 response prepared by DPA's Post-Trial Division Director and addressed to Mr. Nichols.
By letter dated June 25, 2002, DPA General Counsel Larry D. Beale advised this office that DPA "has had no communication with Mr. David Nichols nor has it denied Mr. Nichols any records covered under the Open Records Act. " Acknowledging that Mr. Nichols is represented by Mr. Stutsman, Mr. Beale maintained that "any records pertaining to his case are covered by the attorney-client privilege and therefore exempt under the Open Records Act. " He attached a copy of the June 24, 2003 letter prepared by Rebecca DiLoreto, Post-Trial Division Director, and directed to Mr. Nichols "upon receipt of his open records appeal."
In that letter, Ms. DiLoreto notified Mr. Nichols that the policies implemented by the Department do not include providing a client with a copy of transcripts contained in the certified record on appeal. Continuing, she observed:
In your case, the certified record was returned to the Kentucky Supreme Court when Hon. Dennis M. Stutsman filed the brief on your behalf on February 11, 2003. You may contact the Clerk's office where you may be able to obtain a copy of the transcript; however; there could be a charge for copying services.
In closing, Ms. DiLoreto advised Mr. Nichols that Mr. Stutsman was out of the office on vacation, but assured him that Mr. Stutsman would immediately contact him upon his return. To the extent that the quoted portion of Ms. DiLoreto's letter conforms to the requirements of KRS 61.872(4), we affirm DPA's disposition of Mr. Nichols's requests but find that if Mr. Stutsman received these requests, 2 a fact which could be neither confirmed nor denied when DPA's responses were issued owing to Mr. Stutsman's absence, the failure to respond to those written requests in the first instance constituted a violation of KRS 61.880(1).
KRS 61.880(1) contains procedural guidelines governing public agency response to an open records request. 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.
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). 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 is especially egregious.
Mr. Nichols's April 11, 2003 request for a copy of the transcript from his trial was submitted "per Chapter 61," was signed by the requestor, and his name printed legibly on it. His subsequent request of May 23, 2003 identified, in the subject line, his "Chapter 61 request" and questioned, in the final paragraph, "[w]hat is going on with the Chapter 61 request that [he] mailed to [Mr. Stutsman] on the 11th day of April, 2003." His requests therefore complied in all particulars with the requirements of KRS 61.872(2). 3 Although Mr. Beale indicates, in his June 25 letter to this office, that DPA "has had no communication with Mr. David Nichols," Ms. DiLoreto advises, in her June 24 letter to Mr. Nichols, that "Mr. Stutsman is currently out of the office on vacation. " It therefore appears that DPA could not conclusively establish that Mr. Stutsman did not receive either of Mr. Nichols's requests. If, in fact, those requests reached Mr. Stutsman and he failed to respond to them, we find that his failure to respond pursuant to either KRS 61.872(4) 4 or KRS 61.880(1) 5 constituted a violation of the Open Records Act.
Turning to the substantive issues in this appeal, we find that although Mr. Beale's June 25, 2003 letter to this office did not state a sufficient legal basis for denying Mr. Nichols's request for a copy of the transcript of his trial, Ms. DiLoreto's June 24, 2003 letter to Mr. Nichols, which was prompted by DPA's receipt of this office's notification of Mr. Nichols's appeal, satisfied the requirements of KRS 61.872(4) and was therefore consistent with the Open Records Act. Mr. Beale maintains that because Mr. Nichols is represented by Assistant Public Advocate Dennis Stutsman, "records pertaining to his case are covered by the attorney-client privilege and therefore exempt under the Open Records Act. " Rather than engage in a lengthy analysis of the proper scope of the attorney-client privilege in an open records dispute, we refer the parties to
Hahn v. University of Louisville, Ky.App., 80 S.W.3d 771 (2001) (enclosed), and, in particular, the discussion of the privilege at pages 775 and 776 of that decision. Under no construction of the attorney-client privilege do we believe it can be persuasively argued that the transcript of a criminal trial qualifies as a confidential communication made for the purpose of facilitating the rendition of professional legal services to a client, and we reject this argument.
Nevertheless, we affirm DPA's ultimate disposition of Mr. Nichols's requests for the reasons set forth in Ms. DiLoreto's June 24 letter to him. 6 In that letter, she explained that the certified record in his case, including the transcript, was returned to the Kentucky Supreme Court when Ms. Stutsman filed the brief on his behalf on February 11, 2003. Further, she explained that Mr. Nichols could contact the Clerk's office to obtain a copy of the transcript at the appropriate copying charge. We find this response consistent with KRS 61.872(4), relating to misdirected open records requests, and requiring persons who do "not have custody or control of the public record requested" to "notify the applicant and . . . furnish the name and location of the official custodian of the agency's public record. " Having advised Mr. Nichols that it does not maintain a copy of the trial transcript, and notified him where he might obtain a copy, DPA fully discharged its responsibilities under 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.
David R. Nichols # 155203 Eastern KY Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Dennis StutsmanAssistant Public AdvocateDepartment of Public Advocacy100 Fair Oaks LaneFrankfort, KY 40601
Larry Beale, General CounselDepartment of Public Advocacy100 Fair Oaks Lane, Suite 302Frankfort, KY 40601
Footnotes
Footnotes
1 In these letters, Mr. Nichols also inquired into the status of his appeal and notified Mr. Stutsman of an apparent error in Mr. Stutsman's brief to the court. On appeal, he questions why he received no response to these inquiries. Because these issues do not arise under the Open Records Act, we do not address them in this decision.
2 Those requests were properly addressed to DPA at 100 Fair Oaks Lane, Frankfort, Kentucky 40601.
3 KRS 61.872(2) 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.
4 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.
5 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.
6 We note that in the opening paragraph of her letter, Ms. DiLoreto references DPA policies which "do not include providing a client with a copy of transcripts contained in the certified record on appeal." If DPA maintained a copy of the transcript, and if the requester had sufficient funds to pay for the reproduction of that record, and if there is no statutory basis supporting the policy of nondisclosure of transcripts, we do not believe DPA's position would be legally viable under the Open Records Act.