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 Clark County Detention Center violated the Open Records Act in denying Daniel Konstantopoulos' September 14, 2006, request for records documenting the total revenue received from the jail commissary fund from January 1, 2005, to December 31, 2005, and from January 1, 2006 to September 1, 2006, as well as the ending balance of the jail commissary fund on December 31, 2005, and on September 1, 2006, on the basis that "[t]he commissary bank account does not fall under the open record act [sic]." 1 Additionally, we are asked to determine if the Center violated the Act in failing to respond, in any fashion, to Mr. Konstantopoulos' September 18, 2006, request for records containing "[a]n itemized list of the disbursements from the commissary account for 2001, 2002, 2003, 2004, 2005, and 2006." For the reasons that follow, we find that the Clark County Detention Center's disposition of these requests constituted both a procedural and substantive violation of Kentucky's Open Records Act.
KRS 61.880(1) establishes procedural guidelines for public agency response to an open records request. That statute 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.
In construing 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). Amplifying on this view, the Attorney General has opined that 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." 93-ORD-125, p. 3. A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act -- much less . . . amount[] to substantial compliance." Id.
The Clark County Detention Center's response to Mr. Konstantopoulos' September 14 request was perfunctory at best, omitting any reference to statutory authority justifying its position and any explanation, brief or otherwise, as to how that authority applies to the records withheld. The Center's failure to respond to his September 18 request was particularly egregious. The Center had not one, but two, opportunities to satisfy its statutory duties under KRS 61.880(1): first, by issuing a proper response to Mr. Konstantopoulos' open records requests, and second, by responding to this office's notification of receipt of his open records appeal. Its failure to do so constituted a violation of KRS 61.880(1).
We find no support for the Clark County Detention Center's position that "the commissary bank account does not fall under the open record[s] act." KRS 441.135 expressly addresses jail canteen accounts, and provides, at subsection (2), that "[a]ll profits from the canteen shall be used for the benefit and to enhance the well being of the prisoners. The jailer shall keep books of accounts of all receipts and disbursements from the canteen and shall annually report to the county treasurer on the canteen account." In an advisory opinion written prior to enactment of KRS 441.135, this office recognized that the jailer holds a public office and his commissary records are public records since "[t]here is no logical way to disassociate the commissary activity of this public officer from his functions as jailer. " OAG 80-525, p. 2. Presaging enactment of KRS 441.135, the Attorney General declared that "[s]uch records would be a part of his total official records." As a corollary of this proposition, we find that the requested records fall squarely within the parameters of KRS 61.870(2) 2 and that they must be made available for inspection upon demand. Accord, 98-ORD-101. The position taken by the Clark County Detention Center is legally unsupportable, and its denial of Mr. Konstantopoulos' request constituted a clear violation of the Open Records Act.
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.
Footnotes
Footnotes
1 September 15, 2006, response to Mr. Konstantopoulos' September 14 request from Jailer Bobby W. Stone.
2 KRS 61.870(2) defines the term "public record" as:
All books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in possession of or retained by a public agency.