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 the actions of the Lexington-Fayette Urban County Government (LFUCG), Division of Community Corrections, (Division) relative to Winston Briscoe's request for certain Division records violated the Open Records Act. For the reasons that follow, we find that Division's failure to timely respond to Mr. Briscoe's request was a procedural violation of the Act, but that its response that affirmatively advised that records responsive to his request did not exist was in compliance with the Act and prior decisions of this office.
By letter dated April 23, 2006, Mr. Briscoe submitted the following request 1 to Inmate Services of the Division:
I'm request all files notes papers between us doing the inmate service jail information that we had, Eddie Tayler (sic), need copy, what I told you and; you said to me when you came to the hole visit me about Jaime Price on 1st Degree Sodomy January 8, 2000 or 1-9-2000 them charges Public Records from Winston Briscoe everything you have wrote down. Thank You.
In his letter of appeal, dated May 3, 2006, Mr. Briscoe indicated that he had not received a response to this request.
After receipt of notification of the appeal, Keith Horn, Attorney Sr., LFUCG, provided this office with a response on behalf of the Division to the issues raised in the appeal. In his response, Mr. Horn advised:
The custodian of records for the Division of Community Corrections was not aware that Mr. Briscoe had made an open records request until he received your letter notifying him of the appeal. The "copy" of the request that Mr. Briscoe provided you as part of the appeal is not actually a copy of the letter he sent to Community Corrections, Attached (as Exhibit A) is a copy of the letter he actually sent. As you will see, it is not on a "Request to Inspect Public Records" form, Mr. Briscoe did not identify it as an open records request, and he did not send it to the Records Custodian. Mr. Briscoe sent his letter to a commander, who did not recognize it as an open records request and, so, did not forward it to the Records Custodian. As you will further see, Mr. Briscoe's letter is confusing and vague.
Mr. Horn further advised that when the records custodian became aware of the request via the notification of appeal from this office, he tracked down Mr. Briscoe's request and responded to it. This response, dated May 10, 2006, from Todd Eads, Assistant Director, Community Corrections, Custodian of Records, stated:
Your open records request addressed to the Division of Community Corrections has been received this date requesting a copy of files, notes, and papers between you and Inmate Services, Capt. E. Taylor. Capt. Taylor has informed me that she doesn't have any notes from having a conversation with you. We are unable to determine what other papers you are referring to and ask that you specify.
To begin, we find that regardless of whether Mr. Briscoe's request was specifically identified as an open records request, the Division was obligated to treat it as such. With reference to the sufficiency of a records request, in 99-ORD-148 this office noted that even if a request "is not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfies the requirements of KRS 61.872(2), relative to written application, [as long] as it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2; 04-ORD-048. When such a request is tendered, the statutory requirements codified at KRS 61.880(1) are triggered and an agency is obligated to respond in a proper and timely fashion. The fact that Mr. Briscoe did not use the agency's form in his open records application cannot serve as a valid basis for denying a request. In 94-ORD-101, this office held:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
Mr. Briscoe's request substantially satisfied the minimum requirements of a properly framed open records request found at KRS 61.872(2) insofar as it was in writing, described the records to be inspected, signed by the applicant, with the signature being legible. This being the case, the Division was obligated to issue a response that "include[d] a statement of the specific exception authorizing the withholding of the record[s] and a brief explanation of how the exception applies to the record[s] withheld." The duty to properly respond does not place an undue burden upon public servants," the Court of Appeals has observed, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." George William Sykes v. James Kemper, Ky., App., 2000-CA-000714-MR (3/30/01), petition for rehearing denied, July 20, 2001 (unpublished opinion holding that the failure to issue a proper response to an open records request was not excused by the requester's failure to identify the request as a request made under KRS 61.870 et seq. ). 2 Accordingly, the Division's failure to timely respond to the request within three business days of its receipt constituted a procedural violation of the Open Records Act. KRS 61.880(1) .
Turning to the substantive issue, the Division's response affirmatively advised Mr. Briscoe that notes of a conversation between him and Captain Taylor did not exist. The response explained that Captain Taylor had indicated that she did not have any notes of a conversation with Mr. Briscoe. This response was in 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 Division discharged its duty under the Open Records Act by affirmatively so advising that it did not have a copy of the requested notes. 99-ORD-150.
Finally, the Division also advised Mr. Briscoe that it was unable to determine what other records he was referring to and asked him to "specify. " This portion of the response was not a denial, but a request from the agency for Mr. Briscoe to clarify his rather vague request by specifically describing what other records, if any, he was seeking. Such a request is both reasonable and consistent with the Open Records Act. 04-ORD-195.
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.
Warren Briscoe, # 142764Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Todd EadsRecords Custodian Division of Community Corrections600 Old Frankfort Circle Lexington, KY 40510
Keith HornDepartment of LawLexington-Fayette Urban County Government20 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 With his letter of appeal, Mr. Briscoe provided a copy of an April 23, 2006, open records request to the Division that is similar to, but different from the one actually received by the Division and quoted here. KRS 61.880(2)(a) requires that a copy of the written request submitted to the public agency be forwarded to the Attorney General in an open records appeal. Insufficient information is presented to explain the disparity between the two requests. Thus, we do not address this issue. For purposes of this appeal, we address the request actually received by the Division.
2 Although George William Sykes v. James Kemper is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request not clearly identified as such.