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 Boyd County Detention Center violated the Open Records Act in the disposition of Wayne Eplion's December 13, 2006, request for copies of:
all medical records (physician, nursing, psychiatric, or pharmaceutical), housing and cell assignment records, movement and transport records, disciplinary records, log entries (including legal mail, telephone, visitation, attorney conferences, investigative interviews or conferences/meetings or otherwise designated conferences, meetings, or interviews), personal property records, booking records, dietary records, noted observations, and all information regarding staff supervision (including relevant staffing schedules) relating to or associated with the incarceration of Wayne Allen Eplion 1 . . . between the dates of April 2001 and September 2002.
Having apparently received no response to his request, 2 Mr. Eplion initiated this appeal by letter dated December 29, 2006, and received in this office on January 12, 2007. For the reasons that follow, we find that the Detention Center's disposition of Mr. Eplion's request was procedurally and substantively deficient, and that its belated response raises serious records management issues that may warrant review by the Department for Libraries and Archives.
Upon receipt of the Attorney General's notification of Mr. Eplion's appeal, Boyd County Attorney C. Phillip Hedrick responded on behalf of the Detention Center. Mr. Hedrick advised:
In discussing the matter with Boyd County Detention Center personal [sic] these records that have been requested were generated and existed during a prior administration. They are either unaware of any records being in existence or are not presently able to locate the records being requested. . . . [C]onsidering these records were the records of a prior constitutional office holder I believe he would be the proper custodian of the records if he were still subject to compliance rather than the current administration. Nevertheless, in demonstrating good faith, I have instructed the Detention Center to locate all records pertaining to the requested individuals but at this point in consideration of the privacy rights of other inmates we will only respond to Mr. Eplion request for his own personal records absent him providing us with a proper release from any other inmates for whom he requested records. 3
We hope the foregoing is satisfactory. Our specific response is that the Detention Center and present jailer are not the custodian of the records requested, and, frankly, I am not sure who the custodian is or would be. Also, again, some of these records probably don't even exist and never have while others would have been kept in the normal course of business. We are trying to locate any that we can for Mr. Eplion on himself.
We have received no follow-up communication from Mr. Hedrick or the Detention Center indicating whether records were indeed located and furnished to Mr. Eplion.
Notwithstanding the fact that efforts apparently were, or are being, undertaken to locate responsive records, we find that the Detention Center's response is procedurally deficient insofar as it does not appear to comply with the requirements for agency response set forth at KRS 61.880(1) and/or KRS 61.872(5). We further find the Detention Center's response substantively deficient insofar as it reflects a fundamental misunderstanding of KRS 61.8715 and the "essential relationship" between proper records management, under Chapter 171 of the Kentucky Revised Statutes, and agency accountability through records access, under Chapter 61 of the Kentucky Revised Statutes. It is for this reason that we have referred this matter to the Kentucky Department for Libraries and Archives.
To begin, we find that the record on appeal is devoid of evidence that the Detention Center complied with KRS 61.880(1) or KRS 61.872(5) in the disposition of Mr. Eplion's request. As noted, in his response to this office's notification of Mr. Eplion's appeal, Mr. Hedrick states that it is his "understanding that the Detention Center made a response to Mr. Eplion advising that it would attempt to locate the records but needed additional time," but he does not provide us with a copy of that response or indicate when it was issued. We remind the Detention Center that, in general, KRS 61.880(1) establishes the procedural guidelines for 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.
These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of other services to the public.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed 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 provide the requester with timely access to the requested records.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. Although the record on appeal is unclear on the issue of whether Mr. Eplion has been afforded timely access to the records he requested, we find that the Detention Center's response, assuming there was one, does not appear to have satisfied the requirements of KRS 61.872(5).
As noted, the only exception to KRS 61.880(1) is found at KRS 61.872(5). That statute 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.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records . . . . If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6. Elaborating on this view, in 01-ORD-38 the Attorney General declared that "KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. " Assuming that a response did, in fact, issue, that response appears to have been deficient insofar as it did not contain a detailed explanation of the cause for delay or state a date certain on which the records would be available. We urge the Boyd County Detention Center to bear these observations in mind in responding to future open records requests.
Turning to the substantive issues in this appeal, we find that any portion of the Detention Center's denial that was postulated upon the current jailer's failure to assume custody of his predecessor's records is legally unsupportable. Our analysis proceeds from the statutory recognition that there is:
an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . .; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage their records according to the requirements of these statutes.
KRS 61.8715. Among "these statutes," KRS 171.680(1) requires "[t]he head of each state or local agency [to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency. " (Emphasis added.)
KRS 171.680(1) is grounded in the widely held, if not axiomatic, view that "[a] written memorial of a transaction in a public office, when made by a public officer, becomes a public record belonging to the office, and not his private property." 76 C.J.S. Records § 2 (emphasis added). Stated alternatively, "[a]n officer who has public records in his or her charge is the mere custodian of those records . . ., the records are not the private property of the officer." 66 AmJur2d, Records and Recording Laws § 5 (emphasis added). The overwhelming weight of legal authority thus recognizes that "[w]here an officer, duly elected or appointed to office and qualified, demands of his or her predecessor the records pertaining to the office and is refused," "mandamus will lie to compel the delivery of books and paper belonging to the office. " McQuillin Mun Corp § 14.21 (3rd Ed.) (emphasis added).
KRS 171.680 is consonant with the requirement found at KRS 64.830, providing that:
An outgoing county official, as soon as his successor has been qualified and inducted into office and his official bond approved, shall immediately vacate his office, deliver to his successor all books, papers, records, and other property held by virtue of his office, and make a complete settlement of his accounts as county official, except as otherwise provided in this section.
(Emphasis added); see also, KRS 30A.160 (records of a court clerk, and "belonging to his office," must be immediately delivered to his successor) ; KRS 61.340 (records of a county or city clerk, and "belonging to his office," must be immediately delivered to his successor) . We find no support in the law for the Detention Center's position that records generated during a prior administration are the records of the prior constitutional office holder and that it is he, rather than the current office holder, who is "the proper custodian of the records." Because the requested records belong to the office, and not the office holder, the current jailer is responsible for establishing and maintaining an active, continuing program for the management of the records of the agency he serves that includes those records generated in past administrations.
Our review of the Records Retention Schedule for Jailers, approved by the Archives and Records Commission pursuant to KRS 171.420(3) and attached hereto, confirms that many of the records Mr. Eplion requested should continue to reside in the custody of the Boyd County Detention Center. His inmate records/folder, for example, is a scheduled record found at Records Series L2751, and should only be destroyed five years after his release. It may consist, inter alia, of:
Inmate Administrative Segregation Sheet, Inmate notes to Staff, Community Service Center File, Property Box/Laundry bag receipt, Coat Receipts, Placement Form-Employment, Placement Form-Hom, Community Center Program Evidence Form, Resident's Personal Property Form, Chain of Evidence Form, Furlough Application, Community Center Arrival Slip, Community Center Discharge Slip, Special Diets, Denial of Admission Form, Alcohol Intoxication Slip, Inmate Receipt Form, Incident Reports, Trusty Contact Visitation Form, Release of Information Form (non-medical), Trusty Application, Inmate Observation Form, Work Release Roster, Work Release - Property Description Form, Extra Good Time Recommendation, Receipt for Law Books, Miranda Rights Waiver, Request for Examination (State Crime Lab), Arrest Card, and Health History.
Mr. Eplion's inmate medical folder is also a scheduled record, found at Records Series L2750, and should only be destroyed ten years after his release. It may consist, inter alia, of certifications of qualified mental health professionals, verified petitions for involuntary hospitalizations, medical log sheets, authorizations for release of medical information, and medical requests. In addition, his inmate classification sheet, Records Series L2677, should only be destroyed five years after his release. Telephone logs, Records Series L2724, should only be destroyed after five years; transportation logs, Records Series L2747, that may contain entries related to him, should only be destroyed five years after the final entry; and visitors' logs, Records Series L2654, documenting visits made from family members, clergy, and attorneys, should only be destroyed after three years.
Mr. Eplion was apparently housed at the Boyd County Detention Center until September 2002, and less than five years have elapsed since his release (or transfer). At a minimum, he should be afforded access to copies of nonexempt records responsive to his request that are located in his inmate folder and inmate medical folder as well as his classification sheets, if those records have not already been disclosed to him. Any other nonexempt records that are responsive to Mr. Eplion's request and that still reside in the Detention Center's custody must also be disclosed to him. Given the Detention Center's apparent misunderstanding of its continuing records management duties, we have, as noted above, referred this matter to the Kentucky Department for Libraries and Archives, under authority of KRS 61.8715, for additional inquiry as that agency deems warranted.
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.
Wayne Eplion, # 161020
Joe Burchett, Jailer 2714 Louisa StreetP.O. Box 455Catlettsburg, KY 41129-0455
Phillip HedrickBoyd County Attorney2800 Louisa StreetP.O. Box 425Catlettsburg, KY 41129-0425
Richard Belding, DirectorPublic Records DivisionDepartment for Libraries and Archives300 Coffee Tree RoadP.O. Box 537Frankfort, Kentucky 40601
Footnotes
Footnotes
1 Mr. Eplion identified himself by social security number and date of birth. This information is omitted in deference to his privacy interests.
2 It is unclear whether the Detention Center issued a timely, written response to Mr. Eplion's request. No such response is attached to his appeal. On behalf of the Detention Center, Mr. Hedrick states that it is his "understanding that the Detention Center made a response to Mr. Eplion advising that they would attempt to locate the records but needed additional time." Mr. Hedrick does not, however, attach a copy of that response which might have been, in any event, deficient under the requirements of KRS 61.872(5).
3 We find no reference in Mr. Eplion's request to records relating to other inmates. Indeed, the only reference to records not directly related to Mr. Eplion that appears in his request is the reference to "information regarding staff supervision (including relevant staffing schedules) . . . ." We therefore find no basis for the Detention Center's reference to the "privacy rights of other inmates, " which, incidentally, omits citation to KRS 61.878(1)(a) in contravention of KRS 61.880(1).