Request By:
James M. Hardin, Sr., # 160644
Kentucky State Reformatory
3001 West Highway 146
LaGrange, KY 40032Cliff Gill, Jailer
McCracken County Detention Center
700 S. 7th Street
Paducah, KY 42003Daniel Y. Boaz
McCracken County Attorney
Courthouse
301 S. 6th Street
Paducah, KY 42003
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the inaction of the McCracken County Detention Center relative to the request submitted by James M. Hardin, Sr. to receive a copy of "a document that reflects all dates that I was incarcerated in the McCracken County Jail under Indictment Number 01-CR-00274" violated the Kentucky Open Records Act. Failing to respond in a timely and proper fashion, as the MCDC did here, constitutes a violation of KRS 61.880(1). Having neglected to advance a statutory basis for its apparent denial, the MCDC must provide Mr. Hardin 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 MCDC does not have custody of the requested records, the MCDC must immediately notify Mr. Hardin in writing, and provide him with the name and location of the custodial agency, if known, as required by KRS 61.872(4).
On a standard form directed to the "McCracken County Jail" on May 24, 2005, Mr. Hardin requested to receive one copy of the specified record. Having received no response, Mr. Hardin initiated this appeal by letter dated July 27, 2005. On August 3, 2005, this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Jailer Cliff Gill and McCracken County Attorney Daniel Y. Boaz. 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 Tuesday, August 9, 2005." As of today's date, this office has not received any response on behalf of the MCDC, nor been advised of any action taken by the MCDC relative to this matter.
As a public agency, the MCDC 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 requests 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 logically follows that failing to respond constitutes a violation of the Act.
Here, the MCDC had two opportunities to discharge its statutory duty under KRS 61.880(1), first, upon receiving Mr. Hardin's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the MCDC has not yet responded to Mr. Hardin'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 MCDC 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 MCDC did not respond to Mr. Hardin's request, the MCDC 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 MCDC must provide Mr. Hardin with copies of any existing records in its custody which are responsive to his request unless the MCDC 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 (m). Pursuant to KRS 61.872(3)(b), the MCDC's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 1 If the MCDC "does not have custody or control" of any records identified in Mr. Hardin's request, the MCDC "shall notify [Mr. Hardin] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the MCDC performs these functions, it stands in violation of the Open Records Act. 2
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.
Footnotes
Footnotes
1 If no records exist which are responsive to portions of Mr. Hardin's request, the MCDC must affirmatively indicate as much in writing to Mr. Hardin 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 MCDC must ascertain whether records exist which are responsive to Mr. Hardin's request and promptly advise him of its findings--nothing more, nothing less.
2 [ILLEGIBLE FOOTNOTE].