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 inaction of the Wayne County Sheriff's Department relative to the request of Darrell Rose for "all records, reports, investigative reports, statements and evidence log sheets, chain of custody logs and any lab test results on evidence obtained and tested by KSP," as well as any pictures available, and "any medical reports, excessive force or disciplinary reports" relating to the "shooting of Delmas Rose[,]" violated the Open Records Act. 1 Failing to respond in a timely and proper fashion to a request, as the Department did here, constitutes a clear violation of KRS 61.880(1). Having neglected to advance a statutory basis for its apparent denial, the Department must provide Mr. Rose with copies of any existing records in its custody which are responsive to his request "upon receipt of all fees and the cost of mailing" in accordance with KRS 61.872(3)(b). If, on the other hand, the Department does not have custody of the requested records, it must immediately notify Mr. Rose in writing and provide him with the name and location of the custodial agency, if known, as required by KRS 61.872(4).
In a letter dated August 16, 2004, Mr. Rose directed his request to the "Wayne County Sheriff's Department" in care of Sheriff James L. Hill. Having received no response, Mr. Rose initiated this appeal by letter dated September 1, 2004. On September 2, 2004, this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Sheriff Hill and the Wayne County Attorney, Tom Simmons. 2 Of particular significance here, the notification advises both parties as follows: "Pursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal. The agency must send a copy of its response, and any accompanying materials, to the complaining party. . . . Your response must be received no later than Thursday, September 9, 2004." As of today's date, this office has not received any response on behalf of the Department, nor have we been advised of any action taken by the Department relative to this matter.
As a public agency, the Department must comply with both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted pursuant to 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 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. (Emphasis added).
In construing the mandatory language of 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, 858 (1996) (emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id.; 01-ORD-183, pp. 2, 3. It stands to reason, therefore, that failing to respond constitutes a violation of the Act.
Here, the Department had two opportunities to discharge its statutory duty under KRS 61.880(1), first, upon receiving Mr. Rose's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the Department has not yet responded to Mr. Rose's request, and its failure to respond in writing, within three business days, constitutes a clear violation of KRS 61.880(1). Public agencies such as the Department are not permitted to elect a course of inaction. As consistently recognized by the Attorney General, 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." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
Because the Department did not respond to Mr. Rose's request, the Department necessarily failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency, . . . ." That being the case, the Department must provide Mr. Rose with copies of any existing records in its custody which are responsive to his request unless the Department can meet its burden of proof by articulating a basis for denying access in terms of the exceptions codified at KRS 61.878(1)(a) through (l). Pursuant to KRS 61.872(3)(b), the Department's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 3 If the Department "does not have custody or control" of any records identified in Mr. Rose's request, the Department "shall notify [Mr. Rose] and shall furnish the name and location of the official custodian of the agency's public records. " KRS 61.872(4). Until the Department performs these functions, it stands in violation of the Open Records Act. 4
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 proceedings.
Darrell Rose, # 102726 D-1Northpoint Training CenterP.O. Box 479Burgin, KY 40310
James L. HillWayne County SheriffCourthouse, 109 North Main StreetMonticello, KY 42633
Tom SimmonsWayne County AttorneyCourthouse, 109 N. Main StreetP.O. Box 176Monticello, KY 42633-0176
Footnotes
Footnotes
1 Although Mr. Rose requests "certified" copies of the records, it is not incumbent on a public agency to "'certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . .'" 03-ORD-207, p. 3. No such requirement exists in the Open Records Act. Id.
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2 Upon receiving notification of Mr. Rose's appeal, Sheriff Hill advised this office via telephone that Tom Simmons succeeded Vernon Miniard, Jr., to whom the notification was sent, as the Wayne County Attorney, but indicated that the mailing address remains the same. Absent evidence to the contrary, therefore, this office must assume that Mr. Simmons received notification of this appeal and elected not to respond.
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3 If no records exist which areresponsive to portions of Mr. Rose's request, the Department must affirmatively indicate as much in writing to Mr. Rose immediately. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Department must ascertain whether records exist which are responsive to Mr. Rose's request and promptly advise him of its findings--nothing more, nothing less.
4 On September 23, 2004, Mr. Simmons responded on behalf of the Department via facsimile, acknowledging the Department's receipt of Mr. Rose's request dated August 16, 2004. Although Sheriff Hill "would be happy to supply Mr. Rose with the requested information," the Department "does not use the same filing system as the Wayne Circuit Clerk's Office, and the case numbers supplied in the request do not match those on file." However, the Department has located "a limited amount of information regarding these cases," namely, pictures, the "uniform offense report," and two witness interview sheets, copies of which are attached to its belated response.
Assuming the Department provides Mr. Rose with copies of these responsive records, any issues relative to those records are now moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. 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; 03-ORD-087. Consistent with this mandate, the Attorney General has repeatedly held that if access to public records which are the subject of a request is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Absent evidence to the contrary, this office assumes that the Department will provide Mr. Rose with copies of the specified responsive records upon receiving advance payment of the copying fees and postage from Mr. Rose. Although its belated response does not cure the noted procedural deficiency, the Department appears to have conducted a reasonable search for responsive records and has now indicated a willingness to go above and beyond its statutory duty in cooperating with Mr. Rose to identify and locate the remaining records. With the exception of issuing a written response to Mr. Rose explaining why no additional records can be provided, no more is required.
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