Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Corrections Department violated the Open Records Act in denying Ja-ron Teague's April 19, 2006, request for "one certified copy of each inmate [] that has been released mistakenly by [Metro Corrections] from 1997 up to 2006, not limited to work, job search, release program, post conviction[] felon[ies] and misdemeanors, and pre-detainees on any type of bonds" and a statement "in each case[] whether any of the inmates [were] charged and convicted of escape 2nd or 3rd degree pursuant to KRS Ch. 520 for the mistaken release by [Metro Corrections]." For the reasons that follow, we affirm Metro Correction's denial of Mr. Teague's request.
By letter dated June 1, 2006, Assistant Jefferson County Attorney Suzanne D. Cordery responded to Mr. Teague's appeal, asserting that KRS 197.025(2), restricting inmate access to public records containing a specific reference to that inmate, and incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 authorizes nondisclosure of the requested information. Ms. Cordery also relied on KRS 61.874 and 61.872(6) in support of Metro Corrections' denial of Mr. Teague's request. She argued:
The Metro Corrections Department does not keep a record such as that described in this request . . . . [and] is not required to search through nine years of inmate records to compile information and create such a record. KRS 61.874(3); 2 05-ORD-116. Further, it would be unduly burdensome undertaking for the Department to fulfill this type of request. KRS 61.872(6).
With reference to Metro Corrections' failure to respond, Ms. Cordery advised that the agency "is unable to find any record [that it] ever received this open records request," and asked that the Attorney General not find that Metro Corrections willfully ignored the request or ignored the time limitation for responding to the request. 3
It is the decision of this office that Metro Corrections properly denied Mr. Teague's request for information on the basis that no public records currently exist that contains the information requested, to wit, a "certified copy of each inmate [] that has been released mistakenly . . . from 1997 up to 2006" and a statement "in each case whether any of the inmates were charged and convicted of escape 2nd or 3rd degree pursuant to KRS Ch. 520 for the mistaken release." That request was not framed as a request for reasonably described public records but instead as a request for information to be extracted from public records. In an early open records decision, this office recognized that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. See KRS 61.871 (providing that "free and open examination of public records is in the public interest"); KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"); and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records "). (Emphasis added.) On this basis, the Attorney General has consistently held that "requests for information, as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13; citing OAG 87-84. See also, OAG 89-77; OAG 89-81; OAG 90-19. Because "a public agency is not obligated to compile a list or create a record to satisfy an open records request," 4 and no public record currently exists that is responsive to Mr. Teague's request, we affirm Metro Corrections' denial of the request on that basis.
Having so concluded, we nevertheless note that if Metro Corrections maintained a document that was responsive to Mr. Teague's request Mr. Teague would not be entitled to review the record by virtue of KRS 197.025(2). As amended in 2002, that statute provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
In construing this provision, the Attorney General has observed:
By its express terms, this provision applies to requests for records submitted by inmates "confined in a jail or any facility . . . under the jurisdiction of the department [of Corrections]." The statute provides that "the department shall not be required to comply . . ." with such requests unless the record requested specifically references the requester. Although the statute does not specifically provide that jails or facilities under the Department's jurisdiction are not required to comply with such requests, we are unwilling to construe the statute so strictly that it yields the absurd result that an inmate can obtain from a jail those records which he cannot obtain from the Department. Given the broad oversight role statutorily assigned to the Department relative to jails, 5 and the common interest of these agencies in avoiding disclosure of records that implicate security concerns and in stemming the swelling tide of frivolous inmate requests, we find that an interpretation of KRS 197.025(2) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole.
03-ORD-074, p. 3, 4. Mr. Teague is "an inmate confined in a jail, " and, under this line of reasoning, Louisville Metro Corrections may properly resist disclosure of otherwise public records to Mr. Teague unless they contain a specific reference to him.
We would, however, be remiss in failing to point out that Metro Corrections' KRS 61.872(6) argument fails for lack of clear and convincing evidence of an undue burden. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In construing this provision, the Attorney General has observed:
[KRS 61.872(6)] is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence, prompting this office to observe:
OAG 77-151, p. 3. We have also recognized, however, that:
OAG 76-375, p. 4. In determining whether an open records request is unreasonably burdensome, and thus warrants invocation of KRS 61.872(6), we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function.
96-ORD-155, p. 3, 4.
The agency's burden of proof is not sustained by the bare allegation that the request is unreasonably burdensome. Thus, in a line of decisions dating back to 1989 this office has held that various public agencies violated the Open Records Act by failing to document, by clear and convincing evidence, how the disputed request placed an unreasonable burden on them. OAG 89-79; 06-ORD-018 (and authorities cited therein). In each of these decisions, we held that mere invocation of the cited exception does not sustain the agency's burden. Because Louisville Metro Corrections offers no evidence of "what its actual burden would be" 6 in fulfilling Mr. Teague's request, we cannot affirm its disposition of his request on this basis. We nevertheless affirm Metro Corrections' denial of Mr. Teague's request for the other reasons set forth above.
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.
Ja-Ron S. Teague, # 139941Western Kentucky Correctional Complex374 New Bethel Road, B2-43Fredonia, KY 42411
Tom Campbell, DirectorLouisville Metro Corrections Department400 South Sixth StreetLouisville, KY 40202
William P. O'BrienDirector of Civil DivisionJefferson County Attorney's Office1001 Fiscal Court Building531 Court PlaceLouisville, KY 40202
Irv MazeJefferson County Attorney600 W. Jefferson Street, 2nd FloorLouisville, KY 40202
Suzanne D. CorderyAssistant Jefferson County Attorney444 South 5th Street, 5th FloorLouisville, KY 40202
Jeff FreemanAssistant County Attorney444 South 5th Street, 5th FloorLouisville, KY 40202
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 It is unclear why Metro Corrections invoked this particular provision pursuant to which public agencies are authorized to prescribe reasonable fees for making copies of nonexempt public records.
3 We note that Mr. Teague was not copied on Metro Corrections June 1 response to this office's "Notification of Receipt of Open Records Appeal." Although we make no finding on the agency's alleged violation of KRS 61.880(1), given the paucity of evidence on this issue, we are obliged to point out that Mr. Teague's request, along with his complaint, are now indisputably in Metro Correction's custody, and that to date he has received neither a response to his request, per KRS 61.880(1), nor a copy of the agency's answer to his complaint, per 40 KAR 1:030 Section 2.
4 OAG 76-375; OAG 79-547; OAG 81-33; OAG 86-51; OAG 90-101; 93-ORD-50; 05-ORD-230.
5 See, for example, KRS 196.030(1)(e) (vesting the Department with the duty to administer and enforce KRS Chapter 441 "relating to the development and enforcement of jail standards; training of jailers and jail personnel, and jail planning and construction"); KRS 441.055 (vesting the Department with the duty to adopt and revise jail standards relating to health and safety, fire safety, operations, recordkeeping, administration, training, treatment of prisoners, medical care, jail equipment and construction, and standards review process); and KRS 441.064 (vesting the Department with the duty to employ jail consultants, inspect jails, and notify jailers of deficiencies).
6 Department of Corrections v. Chestnut, Ky. App., 2004-CA-001497-MR (12-29-05) unpublished opinion (pet. for discretionary review granted). Although Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing this issue.