Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether actions of the Boyd County Detention Center (BCDC) violated the Open Records Act in responding to James "Eddie" Stout's March 4, 2006, request for a copy of the "Audit for the Inmate Commissary Account the years 2003, 2004, and 2005." For the reasons that follow, we find the actions of the BCDC were consistent in part and inconsistent in part with the requirements of the Act.
Joe Burchett, Boyd County Jailer, responding to Mr. Stout's request on behalf of the BCDC, denied the request pursuant to KRS 61.872(6) and KRS 61.878(1)(a). Mr. Burchett advised that he knew Mr. Stout was running for Boyd County Jailer, but believed that the "constant badgering of my staff, the spreading of malicious rumors about the jail and its staff in regards to the treatment of prisoners," and his "interference with a confidential internal investigation" led him to believe his request lacks sincerity. Mr. Burchett further advised that he could not allow Mr. Stout "to abuse the Open Records Act in an attempt to disrupt essential jail functions since it presents a safety and security problem for my staff and the inmates we are charged to protect." In addition, Mr. Burchett stated that the request for records relating to the inmate commissary fund was vague and lacked specificity, and he could not allow him to obtain information about individual jail personnel since there are privacy issues that must be considered. Mr. Burchett then advised Mr. Stout that if he would like to make a new request and more specifically identify the documents he desired and provide a valid reason for requesting those documents, he would be happy to comply.
Shortly afterward, Mr. Stout initiated the instant appeal. In his letter of appeal, Mr. Stout advised that he had earlier requested other information from the BCDC which Mr. Burchett had refused to provide, and the response to his March 2, 2006, request was the same response letter from a previous request.
After receipt of notification of the appeal, Mr. Burchett provided this office with a response to the issues raised in the appeal. In his response, Mr. Burchett stated:
It is my understanding that the open record requests may not be used for personal gain. Mr. Stout is running as my opponent for the position of Jailer of Boyd County. It is my opinion that Mr. Stout is digging for information to help him in this campaign. I tried to give Mr. Stout the information that he requested until it became apparent that he wanted to be a nuisance to me and my staff. I gave Mr. Stout a copy of the yearly jail budget, wage scale for my employees and the income statements of the commissary account for the years that I have been in office.
The audit of the commissary account would have to be obtained from the County Treasurer's office for the audit is not in my possession.
For the reasons that follow, we conclude that the Mr. Stout's records request for copies of the "Audit for the Inmate Commissary Account the years 2003, 2004, and 2005" was sufficiently clear for the BCDC to identify the records that were being sought and to affirmatively respond as to whether those records were available for inspection. Thus, we find that this part of the initial response was procedurally and substantively deficient.
In the supplemental response provided this office, Mr. Burchett advised that the BCDC did not have the audits of the Inmate Commissary Account as those would have to be obtained from the County Treasurer's Office. This response was in substantial compliance with the Open Records Act. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The BCDC discharged its duty under the Open Records Act by affirmatively so advising that it did not have a copy of the requested audits. 99-ORD-150.
Moreover, 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.
As noted above, Mr. Burchett advised that the BCDC did not have the audits of the Inmate Commissary Account as those would have to be obtained from the County Treasurer's Office. This was in substantial compliance with the requirements of KRS 61.872(4); 03-ORD-225. However, it is unclear whether Mr. Stout was provided with a copy of the BCDC's supplemental response submitted to this office. If it has not already done so, the BCDC should promptly provide Mr. Stout with a copy of its supplemental response.
However, we find as error that portion of the BCDC's response that would require Mr. Stout to provide a valid reason for requesting the records. In an early opinion, the Attorney General recognized that "the exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 82-233, p. 3; see also OAG 89-76. Twelve years later, Kentucky's Court of Appeals confirmed this position in Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), observing:
Our analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the legislature clearly intended to grant any member of the public as much right to access to information as the next.
Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has held:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application . . . contains the following:
94-ORD-101, p. 3. In sum, we concluded that "[a] public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)."
KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records, or to consider those motives in determining whether the records should be released. 1 The BCDC therefore erred in inquiring into, and denying Mr. Stout's request on the basis of, his "invalid reasons . . . [for] requesting these reports." As we noted at page 2 of OAG 76-588, "it is contrary to the letter and the spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted."
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.
James "Eddie" StoutP.O. Box 5024Ashland, KY 41105-5024
Joe Burchett, Jailer Boyd County Detention CenterP. O. Box 455Catlettsburg, KY 41129
C. Phillip HedrickBoyd County AttorneyCourthouse2800 Louisa StreetP.O. Box 425Catlettsburg, KY 41129-0425
Footnotes
Footnotes
1 The only exception to this rule is found at KRS 61.874(4)(b), permitting public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a). Nevertheless, agencies may not deny access to records because they are requested for this purpose.