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 Oldham County Jailer (OCJ) violated the Open Records Act in responding to Jim Shaver's requests for copies of certain records pertaining to the operation of the Oldham County Jail. For the reasons that follow, we find that the actions of the OCJ were consistent in part and inconsistent in part with the requirements of the Act.
By two letters dated July 11, 2006, Mr. Shaver submitted open records requests to Mike Simpson, the Oldham County Jailer, requesting copies of the following records, all in reference to the Oldham County Jail and Jailer:
A current payroll list, copies of all time cards and overtime slips and salaries of all Jail personnel, as well as fiscal year's 2002-2003, fiscal year's 2003-2004, fiscal year's 2004-2005, fiscal year's 2005-2006, and fiscal year's 2006-2007.
1. 1999-2000 Fiscal Budget and actual revenues and expenditures.
2. 2000-2001 Fiscal Budget and actual revenues and expenditures.
3. 2001-2002 Fiscal Budget and actual revenues and expenditures.
4. 2002-2003 Fiscal Budget and actual revenues and expenditures.
5. 2003-2004 Fiscal Budget and actual revenues and expenditures.
6. 2004-2005 Fiscal Budget and actual revenues and expenditures.
7. 2005-2006 Fiscal Budget and actual revenues and expenditures.
8. 2006-2007 Fiscal Budget and actual revenues and expenditures.
9. Second request - Any and all public records complaints from 1997 to present.
10. Third request - Any and all inmate complaints from 1993 to present. I am not asking for personal information, only the information which should be public record.
11. Fourth request - Any and all lawsuits filed against the Oldham County Jail or Jailer or pending litigation or insurance claims filed by inmates, deputies, or private citizens.
12. Fifth request - Complete breakdown of "Other Equipment" on both 2000-2001 budget and 2001-2002 budget, 2002-2003 budget, 2003-2004 budget, 2004-2005 budget. If this line item is also in 2005-2006, break it down as well.
13. Last request - Any information relating to the firing of Rhonda Harrison.
By letter dated July 13, 2006, Mr. Simpson responded to Mr. Shaver's request, advising him:
I am in receipt of your open record request dated July 11, 2006. Due to the extensive amount of information you are requesting I will be meeting with Oldham County Attorney, John Fendley to see what information you are entitled to under the open record law. I will notify you as soon as I have had the opportunity to meet with John Fendley.
Subsequently, on July 31, 2006, Mr. Shaver initiated the instant appeal.
By letter dated August 1, 2006, Mr. Simpson provided Mr. Shaver an update on his July 11, 2006, request, stating that after researching the request, he outlined the following response:
I have enclosed a current list of all employees that are employed by the Oldham County Jail. All salaries of jail personnel can be obtain[ed] by contacting the Oldham County Fiscal Court Treasurer. My position on the copies of all time cards and overtime slips for all jail personnel is that, you are not entitled to this information. Please refer to the enclosed copy from the attorney General's Office. Pursuant to KRS 61.878(1)(l), 197.025(1).
Item 1-8You can contact the Oldham County Fiscal Court Treasurer and make your request for those copies.
Item 9To clarify, this is the first request I have received from you. Any public concerns are dealt with on an individual basis as they may arise and there are no records kept.
Item 10To clarify again, this is the first request I have received from you. All inmate files are kept for a minimum of five years per 501 KAR 3:020. Any inmate complaint is made a part of their permanent file. As your request may cover several thousand documents, if you could clarify your request I can make arrangements for you to view all eligible files.
Item 11At the present time I am not aware of any pending lawsuits or insurance claims. You may contact our insurance carrier for any previous claims.
Item 12You can contact the Oldham County Fiscal Court Treasurer and make your request for those copies.
Item 13Rhonda Harrison was not fired therefore there are no records pertaining to her firing.
In an August 5, 2006, letter to this office, Mr. Shaver stated that he attempted to hand-deliver a second set of his requests to the Oldham County Jail and was told by staff on duty, that he would have to come back the next day. In subsequent faxes to this office from both parties, it appears that Mr. Shaver attempted to hand-deliver and fax his open record requests to Mr. Simpson, who refused to accept them. In an August 14, 2006, letter to Mr. Shaver, Mr. Simpson stated that as custodian of certain jail records, he required that any open records requests be sent via the mail.
We address first the procedural issues raised in this appeal. In OCJ's initial August 1, 2006, response, Mr. Simpson stated that "[d]ue to the extensive amount of information" Mr. Shaver was requesting, he would be meeting with the county attorney to see what information he was entitled to under the open records law and he would be notified of the results after meeting with the county attorney. This response was deficient, in that it did not provide a "detailed explanation" for the delay and "the place, time, and earliest date" on which the public records would be available for Mr. Shaver's inspection. KRS 61.872(5).
On this precise issue, the Attorney General has observed:
KRS 61.880 sets forth the duties and responsibilities of a public agency in responding to a request received under the Open Records Act. Subsection (1) of that provision requires that the agency, upon receipt of a request, respond in writing to the requester within three business days of receipt of the request, and produce the requested records for inspection or copying or deny access on the basis of one or more of the statutory exceptions. The only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three business days and to provide the requester with timely access to the requested records."
94-ORD-156, p. 10. Although "the burden on the public agency to respond in three working days is, not infrequently, an onerous one, . . . [n]othing in the statute permits the agency to indefinitely postpone or delay this statutory deadline." Id., p. 9.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
As noted above, the OCJ's response was deficient insofar as it failed to provide a detailed explanation of the cause for further delay and to state the earliest date on which the records would be available. A brief reference to the necessity of conducting a review of the requested records with the county attorney does not satisfy the requirement of a "detailed explanation." The omission of a statement of the earliest date on which the records will be available renders the response defective. If it has not already done so, OCJ must immediately advise Mr. Shaver when he can expect to be notified that the requested records are available. In so doing, OCJ should be guided by the observation that "the value of information is partly a function of time,"
Fiduccia v. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999) cited in 01-ORD-140, p. 3, and 04-ORD-063, and the awareness that KRS 61.872(5) requires a statement of the earliest date the records will be available for inspection. 06-ORD-128.
Next we address the issue of whether the OCJ may properly require Mr. Shaver to submit his requests by means of first class mail, as opposed to hand delivery or facsimile.
In 00-ORD-8, this office held a public agency could not require a requester to submit an open records request only by mail, as opposed to hand-delivery or facsimile copy. In reaching this conclusion, we stated:
KRS 61.872(2) provides, in relevant part, that an application for public records "shall be hand delivered, mailed, or sent via facsimile to the public agency. " The Open Records Act clearly authorizes a requester to employ methods of communicating his request other than the mail. [The requester] elected to communicate his request by facsimile. Like any other requester, he must be permitted to do so.
The Open Record Act authorizes a requester to elect the manner in which he or she chooses to communicate an open records request, either hand delivered, mailed, or sent via facsimile. KRS 61.872(2); 00-ORD-8. OCJ's requirement that Mr. Shaver tender his open records requests only via mail was a violation of KRS 61.872(2). Accordingly, we also find that it was a violation of the Open Records Act for OCJ to not accept the tendered requests by facsimile or hand-delivery to Mr. Simpson and when the OCJ staff did not accept the requests which Mr. Shaver attempted to hand-deliver to the jail. KRS 61.872(2).
Turning to the substantive issues, we will address the various categories of records requested and the OCJ's response thereto.
Request items 1-8 - Fiscal Budgets and actual revenues and expenditures. In response to these requests, Mr. Simpson advised Mr. Shaver that he could contact the Oldham County Fiscal Court Treasurer for these records. It is unclear from the record before us whether or not the OCJ has copies of the requested records, but claims that the Treasurer is the "official custodian" of the requested records and the request must be made to him or OCJ does not have copies of the requested records in its possession.
If the OCJ does not have copies of the records requested, then KRS 61.872(4) plainly states that it would discharge its statutory duty by so notifying the requester and furnishing him with the name and location of the official custodian of the record. If such is the case, OCJ substantially complied with KRS 61.872(4) , by advising Mr. Shaver that these records were in the custody of the Treasurer. If OCJ does not have all or some of the requested records, it has an obligation to affirmatively so advise Mr. Shaver. 99-ORD-98; 99-ORD-150. If OCJ has copies of any of the requested budgets, in its custody which are responsive to the request they should be made available for his inspection unless it can meet its burden of proof by articulating a basis for denying access in terms of the exceptions set forth at KRS 61.878(1)(a) through (n).
Request Item 9 - Any and all public records complaints. Mr. Simpson advised "[a]ny public concerns are dealt with on an individual basis as they may arise and there are no records kept." To the extent no public records complaints exist, the OCJ complied with the Open Records Act by affirmatively so advising, 99-ORD-150. However, if written complaints were received but not kept, this raises possible records retention issues.
Request Item 10 - Any and all inmate complaints from 1993 to present. In responding to this request, Mr. Simpson explained that inmate files were kept a minimum of five years and any inmate complaint would be made a part of the inmate's permanent file. He further explained that this request may cover several thousand documents, and that if he would clarify the request, he would make arrangements for Mr. Shaver to review all eligible files. The OCJ did not deny this request, but because of the time span and volume of records implicated, asked for clarification of the request so he could make arrangements for review of the eligible files. Because OJC has merely requested clarification in order to locate the record(s) requested, rather than denying access, this office finds no violation of the Open Records Act. Moreover, because Mr. Shaver has requested copies of records be sent to him by mail, he must "precisely describe[]" those records, and they must be "readily available within the public agency. " As this office noted at pages three and four of 99-ORD-63:
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.
Here, as in 99-ORD-63, Mr. Shaver failed to describe the records he wishes to access by receipt of copies through the mail in definite, specific, and unequivocal terms, and therefore failed to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, they cannot be characterized as records that are readily available with the offices of the OCJ.
Request Item 11 - any and all lawsuits filed against the Oldham County Jail or Jailer or pending litigation or insurance claims by inmates, deputies, or private citizens. Mr. Simpson responded that he was unaware of any pending lawsuits or insurance claims and advised that he could contact the OCJ's insurance carrier for any previous claims. We find this response was adequate in that Mr. Shaver failed to precisely describe the records he wished to receive via mail in order for the OCJ locate and retrieve the records or to determine if they were readily available within the public agency. 99-ORD-63
Request Item 12 - Complete breakdown of "Other Equipment" in budgets from 2002 through 2006. In response to these requests, Mr. Simpson advised Mr. Shaver that he could contact the Oldham County Fiscal Court Treasurer for these records. As in our discussion of Request items 1-8, if the OCJ does not have these records, the OCJ should affirmatively so advise. If, in fact, the OJC does not have these records in its custody, then advising that the Treasurer had custody of the requested budget records was in substantial compliance with KRS 61.872(4).
Request Item 13 - Information relating to the firing of Rhonda Harrison. Mr. Simpson advised that Ms. Harrison had not been fired and, thus, there were no records pertaining to her firing. OCJ complied with the Open Records Act by affirmatively advising that the requested records did not exist and explaining why. 99-ORD-150.
Current payroll list. Mr. Simpson provided Mr. Shaver with a copy of the current payroll list. Thus, access to this record is moot. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046.
Copies of all time cards and overtime slips and salaries of all Jail personnel for fiscal years from 2002 to present. Mr. Simpson responded that salaries of all Jail personnel could be obtained by contacting the Treasurer. As in our discussion of Request items 1-8, if the OCJ does not have these records, he should affirmatively so advise. If OCJ does not have these records, then advising that the Treasurer had the records was in substantial compliance with KRS 61.872(4).
Mr. Simpson denied access to all time cards and overtime slips under authority of KRS 61.878(1)(l) and 197.025(1).
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
KRS 197.025(1) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which provides "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are among those records excluded from the application of KRS 61.870 to 61.884.
KRS 197.025 is broad in scope and vests the correctional facility with a great deal of discretion in the release of records maintained at its facilities. However, this exercise of discretion is not unfettered. 96-ORD-179. There must be some brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff or inmates. 96-ORD-182.
In the instant appeal, the OCJ offered no explanation as to how providing access to the requested time cards and overtime slips would pose a threat to the security of the jail. In support of this denial, the OCJ cited 04-ORD-180, in which this office upheld the Eastern Kentucky Correctional Complex's denial of a request for access to institutional records regarding security staff, such as staff shifts, daily rosters, call-in logs, time and attendance records, on the basis that it had adequately established how release of the records could constitute such a threat to the security of the institution. In the instant appeal, it is unclear from OCJ's response whether all the time cards and overtime slips were for employees in security positions or that some may have been for clerical positions and, thus, OCJ failed to establish that the same or similar facts existed as in 04-ORD-180, so as to make that decision applicable in this appeal. The mere invocation of an exception, without an adequate explanation of how the exception applies to the record or records withheld, does not satisfy the agency's burden of proof. Accordingly, the OCJ failed to meet its burden for invocation of KRS 197.025(1), in its blanket denial of the request for the time cards and overtime slips.
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.
Jim Shaver3610 Barbara Ann Blvd.Crestwood, KY 40014
Mike SimpsonOldham County Jailer102 West Main StreetLaGrange, KY 40031
John R. FendleyOldham County Attorney100 W. Jefferson StreetLaGrange, KY 40031