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 response of the Paducah Police Department to the request of Jamie Braxton to inspect various records related to "McCracken County Circuit Court Indictment No. 04-CR-00066" violated the Kentucky Open Records Act. Because Mr. Braxton did not "precisely describe" the records requested, the Department's request for more specific information is both reasonable and consistent with the Open Records Act as evidenced by the following authorities. With respect to the "Dispatch Cad Run reports," the Department substantially complied with KRS 61.872(4) in providing Mr. Braxton with the name of the custodial agency.
On August 29, 2004, Mr. Braxton, an inmate at Marion Adjustment Center, requested the "complete arrest records[,] files, investigative reports, evidence log sheets and all chain of custody reports as well as test or serial number verification and results on evidence obtained," etc. relating to the specified indictment from the "Paducah Police Chief." 1 More specifically, Mr. Braxton requested access to the following records:
(1) Dispatch Cad Run reports, [and] statements pertaining to arrest.
(2) Warrants, [p]robable cause affidavits, pictures and complaining parties['] dispatch call or report and any and all offic[er] statements pertaining to the [referenced indictment] .
(3) Seized property log and inventory sheets, and any and all reports or test[s] conducted by or forwarded to the Kentucky State Police under [the provisions of] Chapter 17, [and the results of] any lab test run on weapon or ammo.
(4) Any audio or vid[eo] tapes of the arrest [] recorded by Walmart security cameras pertaining to this arrest, and any reports to support or pertaining to this arrest by Walmart [s]ecurity.
On September 10, 2004, Sergeant Greg Martin responded to Mr. Braxton's request on the attached "Disposition" form, advising Mr. Braxton as follows: 2
Sir, unfortunately we have no way of looking up cases by indictment # . Those are assigned by the Commonwealth Attorney[']s office. Also[,] we have [a] sep[arate] 911 center for CAD runs. Please [resubmit your] request to us with case numbers and/or arrest charges with dates.
Mr. Braxton now appeals from the Department's disposition of his request.
Upon receiving notification of Mr. Braxton's appeal from this office, Stacey A. Blankenship, attorney, responded on behalf of the Department. 3 Attached to the Department's supplemental response is a copy of Sgt. Martin's response. Reiterating the Department's earlier position, Mr. Blankenship observes:
Basically, the response requested Mr. Braxton to provide more information regarding the documents that he sought. Specifically, the Paducah Police Department does not retain documents in the form of indictment numbers and is not aware of indictment numbers assigned to the cases. Cases can be accessed at the Paducah Police Department with the Paducah Police Department case number and/or arrest charges with dates, not indictment number. Sgt. Martin explained to Mr. Braxton that if he would provide that information to him, the documents he requested could be provided.
To begin, the Department's response to Mr. Braxton's request cannot properly be characterized as a denial. KRS 61.872 governs access to public records. Pursuant to KRS 61.872(3): A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing. (Emphasis added).
In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Therefore, a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011.
In construing this provision, the Attorney General has observed:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail.
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific and unequivocal terms the records he wishes to access by mail.
Id., citing 97-ORD-46, p. 3; 04-ORD-011. 4
At issue in 03-ORD-067 was whether the Jefferson County Clerk had subverted the intent of the Act in his disposition of a request for the name and zip code associated with a specified address. In determining that the clerk's response was substantively correct, this office observed that a county clerk's office "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided." Id., p. 5. Likewise, the Department is equipped to locate the requested records upon being provided with the case numbers and/or the arrest charges with dates. When a requester provides the clerk (or records custodian) with such a precise description, "the clerk [custodian] is required to mail [the requester] a copy of the deed [specified records] upon prepayment of reasonable copying charges not to exceed ten cents per page and postage charges." Id. If the requester [Mr. Braxton] is unable to provide this precise information, it is not incumbent on the clerk (or records custodian) "to make extraordinary efforts to identify, locate and retrieve the records in order to copy and mail [the records] to the [requester] ." 03-ORD-067, p. 5 (citation omitted). Such a conclusion is both consistent with the requirements of KRS 61.872(3)(b) and a logical extension of the principle that "[public] agencies and employees are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time[.]" OAG 76-375, p. 4; 03-ORD-067.
By virtue of his confinement at Marion Adjustment Center, Mr. Braxton is foreclosed from exercising his right to inspect the requested records during the regular hours of the public agency codified at KRS 61.872(3)(a). That being the case, Mr. Braxton must "precisely describe" the records "which he wishes to access by mail. " Mr. Braxton's inability to satisfy this threshold requirement "relieves the [Department] of the duty to conduct a search for responsive records which may or may not exist," but that are clearly not "readily available within the public agency. " 03-ORD-067, p. 6; 04-ORD-011. In response to Mr. Braxton's request, the Department has merely requested more precise information which will enable the Department to identify and locate the records requested assuming records fitting the description provided exist. Since the Department does not possess any records which are identified by circuit court indictment numbers, such a request is both reasonable and consistent with the Open Records Act. Assuming that Mr. Braxton provides the Department with the requisite identifying information, the Department must provide him with copies of any existing records which are responsive to his request in its custody upon receiving "advance payment of the prescribed fee, including postage" as permitted by KRS 61.874(1). In light of this determination, the remaining question is whether the Department has otherwise fulfilled its obligation under the Open Records Act.
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. " (Emphasis added). In this case, the Department notified Mr. Braxton that it does not have "custody or control" of the "CAD runs" and provided him with the name of the custodial agency thereby substantially complying with this provision. To fully comply, the Department should also furnish Mr. Braxton with the address of the "911 center" where records fitting this description are maintained if known. With the exception of this deficiency, the Department's response to Mr. Braxton's request was consistent with the Open Records Act.
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.
Jamie Braxton, # 172651-658 D-1Marion Adjustment Center95 Raywick RoadSt. Mary, KY 40063
Randy S. BrattonChief of PolicePaducah Police Department1400 Broadway StreetPaducah, KY 42001
Stacey BlankenshipDenton & Keuler, LLPSuite 301, 555 Jefferson StreetP.O. Box 929Paducah, KY 42002-0929
David DentonDenton & Keuler, LLPSuite 301, 555 Jefferson StreetP.O. Box 929Paducah, KY 42002-0929
Footnotes
Footnotes
1 Although Mr. Braxton's request is dated August 26, 2004, Mr. Braxton did not authenticate the request until August 29, 2004.
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2 In a letter dated September 7, 2004, Mr. Braxton asked this office to review the inaction of the Paducah Police Department relative to the subject request, but failed to attach a copy of his written request as required by KRS 61.880(2)(a) to perfect an appeal. Pursuant to 40 KAR 1:030, Section1: "The Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial[,]" as this office advised Mr. Braxton by letter dated September 13, 2004. Upon receiving the statutorily required documentation, this matter became ripe for review.
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3 Upon receiving the " Notification to Agency of Receipt of Open Records Appeal" issued by this office, Mr. Braxton supplemented his appeal by letter dated October 8, 2004. Contrary to Mr. Braxton's assertion, the notification is simply that, a notification, as opposed to a final decision on the merits of this appeal.
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4 Although Mr. Braxton has not specifically requested to receive copies of the specified records through the mail, "an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " 95-0RD-105, p. 5; 04-ORD-036. While KRS 61.872(3)(b) contemplates access by either on-site inspection or receipt of copies through the mail, the former method "may pose a problem in the restrictive environment of a correctional facility" since an inmate obviously "cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." Id., p. 6. Accordingly, the more demanding standard applies here. Because KRS 61.874(1) does not contain a waiver of the prepayment requirement for inmates, it is "entirely proper for the facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts, despite the delays this may entail." Id.
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