Request By:
Keith D. Phillips, # 00450-033
Federal Correctional Institution
Box 6001 J/B
Ashland, KY 41105Suzanne D. Cordery
Assistant Jefferson County Attorney
600 West Jefferson Street, 2nd floor
Louisville, KY 40202William P. O'Brien
Director of the Civil Division
Jefferson County Attorney's Office
1001 Fiscal Court Building
531 Court Place
Louisville, KY 40202
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Corrections Department violated the Kentucky Open Records Act in its disposition of Keith Phillips' request for copies of "Classification Chronological Notes on computer from 3/1/04 to present" and the "Classification Summary from 12/03 to present as on computer." Because the LMCD has agreed to provide Mr. Phillips with redacted copies of the specified records in accordance with KRS 197.025(1) upon receipt of copying fees and postage, any substantive issues relative to those records are now moot. With the exception of a procedural deficiency, therefore, we conclude that the actions of the LMCD relative to Mr. Phillips' request were consistent with the Open Records Act.
In a letter directed to Su[zanne] Cordery, Assistant Jefferson County Attorney, and Lieutenant Colonel Barry Green of the LMCD, on April 26, 2004, Mr. Phillips requested copies of the specified records, advising the LMCD that its response was "due no later than April 30, 2004." 1 Having received no response, Mr. Phillips subsequently requested that Ms. Cordery "direct the appropriate personnel to respond to [his] request" in a letter dated May 5, 2004. Upon receiving no response to his request for assistance, Mr. Phillips initiated the instant appeal. 2 Attached to his letter of appeal for our review are copies of both handwritten requests.
Upon receiving notification of Mr. Phillips' appeal from this office, Ms. Cordery responded on behalf of the LMCD via facsimile on June 21, 2004. As explained by Ms. Cordery:
[LMCD] has no record 3 of the April 26, 2004 open records request. The Department does have [a] record of an earlier request of Keith Phillips dated February 26, 2004, in which he requested classification records, disciplinary reports, and a Metro sex crimes unit report (see enclosures). Mr. Phillips received Corrections records he requested on March 5, 2004. The current appeal information indicates that Keith Phillips sent the written request to [Lt. Col. Green and Ms. Cordery]; however, neither Ms. Cordery nor Lt. Col. Green is the official custodian of [LMCD] records. Previously, Mr. Phillips was given the name of the official custodian of [LMCD] records, by letter dated March 3, 2004 (enclosed).
With respect to the subject request, Ms. Cordery advises us that "Mr. Phillips is granted inspection of the classification chronological notes from March 1, 2004 to the date he was released from jail, and any classification summaries from 12/03 to the date of release that exist, subject to any secured information contained in these records." In support of her position, Ms. Cordery relies upon "KRS 61.878(1)(l), which exempts records restricted from disclosure by the General Assembly" and "KRS 197.025, which exempts inmate records from disclosure if their release would be a security threat." Ms. Cordery further advises us that the LMCD "has set a copying fee of 10 cents per page, plus postage. " 4
On appeal, Mr. Phillips asks us to "compel the [LMCD] to respond" to his request. Pursuant to KRS 61.872(4):
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.
By letter dated March 3, 2004, Ms. Cordery notified Mr. Phillips that Jane Driskell, Director of Finance, has been designated as the "Official Custodian of Louisville Metro Government Records," and expressly advised Mr. Phillips to direct his "request for police records," i.e., a Metro Sex Crimes Unit report, to Ms. Driskell. In other words, Ms. Cordery provided Mr. Phillips with both the name and address of the LMCD's official custodian as mandated by KRS 61.872(4). Although he does not deny receiving this notification, Mr. Phillips directed both his request of April 26, 2004, and his subsequent letter to Ms. Cordery/Lt. Col. Green, and Ms. Cordery, respectively.
KRS 61.870(5) defines the term "official custodian" as "the chief administrative 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." According to KRS 61.872(2), 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(b) requires each public agency to "adopt rules and regulations in conformity with the provisions of [the Open Records Act] " in order to "provide assistance and information upon request" and to ensure "efficient and timely action in response to application for inspection . . . ." Said rules and regulations must identify the "title and address of the official custodian of the public 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 viewed in conjunction, these provisions require each public agency to appoint an official custodian of records whose function is to process all open records requests received by the agency. Judging by the evidence of record, the Louisville Metro Government, which encompasses the LMCD, appears to have done exactly that.
"[W]e see nothing wrong with the . . . policy of processing open records requests through . . . [one office]. In our view, this policy [e]nsures uniformity and adherence to the law." 93-ORD-134, p. 10, 11. Assuming that a public agency such as the LMCD applies this policy consistently, it may properly require all requests "to be routed through its official custodian to ensure the timely and orderly processing of open records requests." 00-ORD-73, p. 5. Under ordinary circumstances, if an open records request is inadvertently submitted to someone other than the official custodian, due to ignorance or misdirection, agency employees must promptly forward the request to the official custodian so as to ensure timely consideration of the request. Id., citing 98-OMD-64. Such is not the case here. Mr. Phillips was provided with the name and address of the LMCD's official custodian and informed that his requests should be sent to Ms. Driskell. In other words, Mr. Phillips can claim neither ignorance nor misdirection. Despite receiving personal notification of the official custodian's identity and location, Mr. Phillips submitted his request to someone else, namely, Ms. Cordery. Mr. Phillips' apparent disregard for policies and procedures established by the agency suggests a lack of good faith. Although Mr. Phillips' refusal to properly address his requests does not affect the validity of those requests, his actions have impeded his ability to access the records at issue.
To summarize, Mr. Phillips must submit his request(s) in accordance with the policies and procedures established by the LMCD, including the requirement that open records requests be directed to the official custodian, Ms. Driskell. In return, the LMCD must promptly respond to Mr. Phillips' request(s) in writing and make any existing records that are responsive to his request(s) available within the designated time period. If the LMCD denies his request, in whole or in part, its response must include a statement of the specific exception authorizing it to withhold the record and a brief explanation of how the exception applies to the record(s) withheld as required by KRS 61.880(1). 5
In
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals construed this provision as follows:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Although the LMCD cited KRS 197.025 in support of its position that "secured information" contained in the requested records is not subject to disclosure, it failed to reference the applicable provision of that statute, namely, subsection (1). To this extent, the response of the LMCD was procedurally deficient. If LMCD elects to withhold any information contained in the records that are responsive to Mr. Phillips' request, it must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof withheld, per KRS 61.880(1) . 04-ORD-080, p. 11; 01-ORD-232; 99-ORD-155.
As recognized by this office in 97-ORD-41:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
Id., p. 6. In short, the LMCD's general reference to "secured information" does not contain the specificity envisioned by KRS 61.880(1). Because release of such information would apparently raise legitimate security concerns, however, the LMCD properly relied upon KRS 197.025(1) in redacting 6 the requested records prior to disclosure, albeit implicitly.
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
As correctly observed by Ms. Cordery, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are among those records excluded from the application of KRS 61.870 to 61.884.
By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 04-ORD-017; 03-ORD-190. In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 04-ORD-017, supra; 03-ORD-190, supra. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 04-ORD-017, supra; 03-ORD-190, supra. In a proper exercise of its discretion, the LMCD has determined that release of certain material contained in the requested records would pose a threat to the safety and security of the inmates, staff and institution. We have consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 04-ORD-017, p. 5; 03-ORD-190, supra; 00-ORD-125; 96-ORD-179, supra. Accordingly, we have declined to substitute our judgment for that of facilities and departments, and the instant appeal presents no reason to depart from this approach.
Because the LMCD has agreed to provide Mr. Phillips with redacted copies of the requested records, further analysis is unwarranted. Pursuant to 40 KAR 1:030, Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046, supra, and 03-ORD-087. In other words, "the propriety of the initial denial becomes a moot issue" if access to the public records that the requester seeks to inspect or copy is initially denied but subsequently granted. 04-ORD-046, supra, p. 3, citing OAG 91-140. Consistent with the foregoing authorities, we conclude that any remaining issues involving the requested records are now moot. In light of this determination, we must decline to address the merits of any issues relative to the redacted records that the LMCD has agreed to disclose.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 Contrary to Mr. Phillips' assertion, the LMCD was obligated to respond within five days after receiving his request. Pursuant to KRS 197.025(7):
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
Chapter 197 defines "department" as the Department of Corrections. In 04-ORD-046, however, the Attorney General observed:
In addressing the procedural requirements of the Open Records Act as applied to correctional facilities, this office has recognized that the General Assembly substantially amended KRS 197.025 during the 1998 legislative session. 99-ORD-102, p. 2. Among the amendments to KRS 197.025 enacted by the General Assembly was this specific provision extending the three day deadline for agency response to an open records request found in the residual statute codified at KRS 61.880(1), to five days for the [DOC] and state correctional facilities such as the Kentucky State Penitentiary. Id. "KRS 61.880(1) is a general [statutory provision] that only applies where there is no other applicable statutory deadline for agency response" whereas KRS 197.025(7) is a specific statutory provision establishing the deadline by which the DOC and facilities such as the KSP must respond to open records requests. Id. Where two statutes address the same subject, "the specific shall prevail over the general." City of Bowling Green v. Board of Education of Bowling Green, Ky., 443 S.W.2d 243, 247 (1969). Accordingly, KRS 197.025(7) applies here, [and the LMCD was obligated to respond within five days of receiving Mr. Phillips' request.]
Id., p. 3.
2 As explained by Mr. Phillips on appeal, he was transferred from the Jefferson County Jail in Louisville, Ky. to the Federal Correctional Institution in Ashland, Ky. on June 3, 2004.
3 In his letter of appeal, Mr. Phillips requests that we "compel [the LMCD] to respond" to his request with the necessary implication being that the LMCD received but ignored his request. According to Ms. Cordery, however, the LMCD became aware of Mr. Phillips' most recent request only upon receiving notification of the instant appeal. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has said:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, it is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204. Likewise, the record in this appeal does not contain sufficient information concerning the actual delivery and receipt of Mr. Phillips' open records request to enable us to resolve this factual discrepancy although the fact that Mr. Phillips directed his correspondence to Ms. Cordery rather than the official custodian of records substantiates the LMCD's claim.
4 Such a policy is consistent with the express language of KRS 61.874(1) and 61.874(3). In Friend v. Rees, 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page is a reasonable fee for reproducing standard hard copy records and the Attorney General adopted this position in a long line of decisions. See 01-ORD-136; 99-ORD-40.
5 KRS 61.880(1) dictates the procedure that a public agency must follow in responding to a request submitted under the Open Records Act. In relevant part, 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 the 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.
6 KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."